Richard Painter is a distinguished, ethics-savvy attorney of a progressive bent who teaches legal ethics and who is a frequent contributor to the Legal Ethics Forum. He has formulated a legally enforceable candidate’s pledge requiring a member of Congress, once elected,not to accept campaign contributions except from natural persons residing in a congressional district and a promise, after leaving Congress, not to accept a lobbyist job that would entail lobbying former colleagues in the Capitol.
Painter was inspired to do so, he says, when contacted former student who is managing the John Denney for Congress Campaign in Minnesota’s Sixth Congressional District. Denny wants to take such a pledge, and Painter obliged with the document below.
What do you think?
Deal With The District: A Legally Enforceable, Money Back-Guaranteed Ethics Contract for Better Government
PURPOSE AND AGREEMENT
I _______________ AS CANDIDATE FOR CONGRESS IN THE _____DISTRICT OF [STATE], AND LATER, IF ELECTED, AS A MEMBER OF THE UNITED STATES HOUSE OF REPRESENTATIVES (“PROMISOR”), AGREE TO TRULY HOLD MYSELF ACCOUNTABLE TO MY CONSTITUENTS BY MAKING LEGALLY ENFORCEABLE MY CAMPAIGN PROMISES AND SUBJECTING MYSELF TO THE BELOW ANTI-CORRUPTION PROVISIONS AND PENALTIES NOT CURRENTLY ENFORCEABLE AGAINST OR APPLIED TO ANY CANDIDATE FOR OR MEMBER OF CONGRESS.
IN ORDER TO MAKE THESE PROMISES LEGALLY ENFORCEABLE, I SHALL ENTER INTO A LEGALLY BINDING CONTRACT WITH [NAME OF STATE FOLLOWED BY DISTRICT NUMBER LLC] [E.G. MINNESOTA SIXTH LLC] (“MINNESOTA SIXTH”), A MINNESOTA LLC ESTABLISHED FOR THE SOLE PURPOSE OF ENFORCING THIS CONTRACT, PROVIDING THAT MINNESOTA SIXTH HAS, AT ITS OWN EXPENSE, INVESTIGATED MY INTENT TO ABIDE BY THESE PROMISES, AND BELIEVES I WILL ABIDE BY THESE PROMISES AND THAT, IF I BREAK ANY OF THESE PROMISES, I AGREE TO PAY TO MINNESOTA SIXTH, OUT OF MY PERSONAL FUNDS, LIQUIDATED DAMAGES AS SET FORTH BELOW.
AS PROVIDED IN ITS ARTICLES OF ORGANIZATION, FOR ANY SUCH RECOVERY MINNESOTA SIXTH RECEIVES FROM ANY CANDIDATE OR MEMBER FOR BREACH OF CONTRACT, AFTER PAYING ALL APPLICABLE EXPENSES AND TAXES, MINNESOTA SIXTH SHALL DISTRIBUTE ALL REMAINING AMOUNTS RECOVERED TO CHARITIES THAT SERVE, PRINCIPALLY, THE INTERESTS OF THE PEOPLE OF THE SIXTH DISTRICT. THE ARTICLES OF ORGANIZATION OF MINNESOTA SIXTH SHALL PROVIDE THAT ITS MANAGING MEMBERS SHALL ALL BE RESIDENTS OF THE DISTRICT WHO ARE COMMITTED TO THE PRINCIPLES SET FORTH IN THIS AGREEMENT.
ANTI-CORRUPTION PROVISIONS
Prohibitions and Promises –
1. No Conflict of Interest Campaign Contributions. Promisor shall not intentionally and directly solicit or Knowingly Accept any campaign contributions that create a conflict of interest (“COI Contributions”) with Promisor’s duty to represent, exclusively, the people of the District Promisor represents.
2 Lifetime Ban on lobbying Congress. Promisor agrees to self-impose and adhere to a lifetime ban on Lobbying back to any member or staff of the United States House of Representatives or Senate for compensation after serving any congressional term.
3. Definitions and Terms –
Knowingly Accept means to expressly accept or Impliedly Accept any contribution of any legal tender.
Impliedly Accept means to spend or cash any contribution, or to fail to expressly reject any contribution within 90 days of its receipt.
Express rejection may be made in any manner reasonably calculated to give notice to donor and the public.
COI Contributions are campaign funds donated to Promisor by any political party, Political Action Committee (PAC), labor union, for-profit corporation, Special Interest Group, or any individual not residing in the State of Minnesota who is not also a Family Member of Promisor.
Special Interest Groups are industry or advocacy associations or groups that focus on particular issues, or any other group that seeks through its contributions to influence legislation.
Family Member means any family member or immediate relative as defined by the Office of Personnel Management under 75 C.F.R. § 33491 (2010).
Lobbying shall have the same meaning as set forth in the Lobbying Disclosure Act of 1995 as amended.
4. Penalties/Damages in the Event of Breach.
Section 1. Promisor must pay out of Promisor’s personal funds, liquidated damages to Minnesota Sixth in the amount of twice the amount of the contribution in question, and furthermore, if elected, Promisor must pay liquidated damages in the amount of Promisor’s entire congressional salary for Promisor’s term as Member.
Section 2. Promisor must pay out of Promisor’s personal funds liquidated damages to Minnesota Sixth in an amount equal to Promisor’s entire earnings to date as a Member plus the agreed upon amount of Promisor’s first year salary as lobbyist.
Signed: _______________________ Date
Candidate
Note: this document is a pledge to be signed by the candidate. The contract with the LLC is to have substantially similar language and is to be signed by both the candidate and a managing member of the LLC and shall state the consideration provided by the LLC to the candidate including the LLC’s efforts conducted at its own expense to ascertain the candidate’s intent to comply with the pledge, to explain the pledge to the candidate and his or her staff and to the public, and the LLC’s ongoing efforts to ascertain compliance with the pledge by all candidates in the district who sign it.
I like it!
Ethics Alarms 
“Read my lips — no new lobbyists!”
Nice try, but I have full confidence that anyone who signs the pledge will play Ponzi with it, so that despite full payment of all damages, the Promisor, thanks to loyal contributors, will have more personal funds on hand after paying the penalty than the Promisor had before committing a breach. Nope. Still gotta be a revolution, and the enforcement that only such can bring.
You believe someone would
(1) work in Congress for two years (at minimum) for free;
(2) Retire from Congress and wait two years to “lobby back,” then
(3) actually lobby back to Congress and breach this contract;
(4) then give all of their lobbyist salary back to their District in the form of damages;
Just so, after all this, they can cash out?
I mean, I know lobbyists can make a lot of money, but its not that lucrative. Plus, anyone who signs this contract and then breaches will have earned themselves a terrible reputation and will be recognized as someone no one would want to hire.
How is this a Ponzi scheme, exactly?
I like the pledge but I would prefer that the oath of office include an affirmation of absolute candor to the public.
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
Perhaps we should add:
I do solemnly swear (or affirm) that I will provide a true and complete presentation of the facts as I know them when speaking to the public, and I will not knowingly distort such facts in such a manner that would cause the recipient to act in a manner contrary to the citizens best interests.
I do recognize that some information must remain secret but that simply means they cannot discuss it. Keeping a secret does not mean that you are permitted to purposely mislead the public to keep the facts away from them.
“Keeping a secret does not mean that you are permitted to purposely mislead the public to keep the facts away from them.”
Um . . . actually it does. The omission of information can, in and of itself, reveal classified information. In such instances, a cover story is used to prevent that.
Ethically, it is a utilitarian balancing act of doing less harm through an intentional lie than through allowing the secret to become public.
–Dwayne
The fact that a pledge would be deemed necessary in and of itself shows what’s wrong with the entire system.
What is wrong with the entire system?
Agreed, but it does hold their feet to the fire. We could make the same claim regarding the current oath of office.
Hi everyone, here is a link to Mr. Denney discussing the Pledge: http://www.johndenneyforcongress.com/the-deal/
I’m not actually sure this is enforceable. Liquidated damages clauses which are intended to punish the breaching party are unenforceable, and I think this would qualify as one of those. Not that I don’t appreciate the effort though…taking lobbying positions after being in Congress should just be illegal, and I don’t know why it’s not, besides the fact that the people who would have to illegalize it are the ones who want to benefit from it being legal.
Lobbying should be illegal.
No, lobbying is Constitutionally protected. It’s the direct contributions attached to lobbying that are a problem.
What it still comes down to is that people of integrity alone will hold themselves to such an oath. The trick is always to identify first those who are and those who aren’t. That’s what political parties are supposed to do. When one or more of them become corrupted themselves in the selection process, the entire system falls apart. That’s why the so-called “litmus test” for candidates is necessary.