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 Legislative and Executive branches of the Federal government, established under Articles I and II of the Constitution of the United States, before, during and after their terms in office as well as their staff. (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) in either the Legislative or Executive branches of the Federal government or in any administrative agency that has been granted powers of the Legislative or Executive branches of the Federal government and (B) whose office is ultimately responsible for final decisions regarding rulemaking and/or adjudications on any relevant matter. (2) Candidate means any individual who seeks nomination for election, or election, to Federal office, whether or not such individual is elected, and, for purposes of this paragraph, an individual shall be deemed to seek nomination for election, or election, to Federal office, if (A) such individual has received contributions aggregating in excess of $5,000 or has made expenditures aggregating in excess of $5,000; or (B) such individual has given his consent to another person to receive contributions or make expenditures on behalf of such individual and if such person 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 electioneering communications in 2 U.S.C. 434(f)(3) and 11 CFR 100.29 with the revision that 11 CFR 100.29(a)(2) is deleted and replaced with the clause is publicly distributed by an individual or an individuals Treasurer at any point after that individual has become a candidate.

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(4) Communicate means to intentionally and purposefully transmit information through any medium whatsoever, including but not limited to face-to-face contact, writing, audio or video recordings, or other electronic media such as email. (5) Constructive knowledge means the actual knowledge of a fact imputed to an individual if that individual should or would have known that fact by the exercise of reasonable care or diligence under the circumstances. (6) Contribution means any gift, subscription, loan, advance, or deposit of money or anything of value, made for any political purpose. There shall be a conclusive presumption that any such giving of value from a person who has been a lobbyist in the last two years, starting from the date of the giving of value, was made for a political purpose. (7) Elected official means any individual who holds office as a Congressman in the United 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 United States, or any individual who holds any of the above offices, for any length of time, as a result of the death, impeachment, incapacity, retirement or other disqualification or removal 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 a candidate; and (C) a primary election held for the selection of delegates to a national nominating convention of a political party. (9) Good faith means honesty in fact and the observance of reasonable standards of fair dealing. (10) Lobbyist means any petitioner (A) who receives anything of value from a third party to petition the Federal government for redress of grievances pursuant to the First Amendment of the Constitution of the United States or (B) who is currently employed at the time of the petitioning as an officer, director, or board member of any legal or commercial entity that employs more than one hundred (100) individuals, including any wholly-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 States Government;
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(C) the administration or execution of a Federal program or policy (including the negotiation, award, or administration of a Federal contract, grant, loan, permit, or license); or (D) the nomination or confirmation of a person for a position subject to confirmation by the Senate. (12) Petitioner means any person who communicates with elected or appointed officials in order to petition the government for a redress of grievances pursuant to the First Amendment of the Constitution of the United States, regardless of whether the person receives 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 other legal 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 a specific appointed official; B) has joined in or has filed or participated in the creation of any brief filed during the adjudication or similar judicial decision in which a specific appointed official has participated; C) owns, either as a parent company or as a successor in interest, any such person referenced 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 person who A) has submitted a bill, amendment or any other such matter that originates, is discussed or receives a vote in the specific elected officials legislative committee; B) has joined in or has participated in the creation of any brief or memorandum to be 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 person referenced in subsections A or B; or D) has employed lobbyists to communicate with a specific elected official regarding 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 Legislative or Executive branches of the Federal government or in any administrative agency that has been granted powers of the Legislative or Executive branches of the Federal government and (b) who is neither an elected official nor an appointed official. (17) Value means currency, goods, services, real estate, forgiveness of an antecedent debt, loans, security interests, stock options, investment securities, tax credits, offers of employment, any legal consideration sufficient to support a simple contract and any promise to deliver any of the above or other items at a future time whether or not such promise is legally enforceable or constitutes sufficient legal consideration to support a simple contract.
Official Comment 1. Appointed officials. The term appointed officials aims to capture the top decision-makers in any given administrative agency or executive department. The decisions and rules propagated on a myriad 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 empty without applying its rules to these governmental entities. For example, appointed officials includes the Commissioner of Internal Revenue, the Secretary of State, Commissioners of the Securities and Exchange Commission and the Director of the Federal Bureau of Investigation. Since appointed officials 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 defined in 103(16) as well as Official Comment 16 below. 2. Candidate. The only complexities that arise from the term candidate as used in this Act revolve around when exactly one becomes a candidate. The definition here takes its language and concomitant 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 candidate telecommunications is almost entirely identical to the definition of electioneering communications currently defined and utilized under federal law. That definition is lengthy and complex, but in simplified form, it states that an electioneering communication is any broadcast, cable or satellite communication that 1) refers to a clearly identified candidate for federal office, 2) is publicly distributed shortly before an election for federal office (30 or 60 days depending) and 3) in the case of candidates for Congress, is targeted to the relevant electorate. The drafter accepts the logic and reasoning of the vast majority of this definition, including the exemptions for the press, debates and communications disseminated through alternate means. However, the second requirement listed above 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 a candidate as defined in this Act. 4. Communicate. This term has been defined in this section in order to give thorough clarity to the criminal provisions of 303, which pertains to the ex parte communication of elected or appointed officials with lobbyists. 5. Constructive knowledge. This is an important, practical concept that is utilized in 501s duty to report commissions of corrupt practices under this Act. As discussed in the Official Comments to Page 4 of 30

that section, the concept is meant to capture those who may intentionally avoid obtaining actual knowledge of events in an attempt to evade the technical acquisition of actual knowledge while still being cognizant of what has likely happened given the circumstances. 6. Contributions. Intuitively, contributions are things of value given to candidates while they are attempting 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, any giving of value from them will be presumed to have been for a political purpose and thus would be presumed to be a contribution. 7. Elected officials. This is a straightforward definition that generally means what it says, i.e., any member of the Federal government who holds his office due to a public election. This term, as well as appointed officials, are used to back into the definition of staff as essentially meaning any member 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 Act of 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 meant to stave off the slim potential for abusive reporting of potential wrongdoing by staff under this Act for political means or other reasons. 10. Lobbyist. This is one of the more important definitions in the Act. The first manner in which one can become a lobbyist is relatively straightforward and likely matches the colloquial definition of lobbyist in society, i.e., a lobbyist is a paid or similarly compensated petitioner under the First Amendment. The second manner in which one can become a lobbyist requires more discussion. That definition brings in individuals who are in positions of control over large organizations, whether they be unions, corporations or any other non-individual person. The drafter reasons that these individuals are in positions of such responsibility relative to the non-individual person over whom they exercise control 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 are presumptive lobbyists due to the inability to meaningfully gauge when that individual is speaking on his 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 2 U.S.C. 1602(8)(A), and the drafter accepts its reasoning. However, the many exceptions that are included under that definition have been discarded as irrelevant or moot due to the differences in structure and purpose between this Act and that Title. 12. Petitioner. This term has been included here exclusively for its use in several Official Comments in which important distinctions are drawn between the treatment of lobbyists and petitioners. Its definition is drawn almost entirely from the text of the First Amendment of the Constitution of the United States. As is noted in later comments, all lobbyists are petitioners, but very few petitioners are actually lobbyists. 13. Person. This term is routinely defined in this manner and is perhaps more aptly referred to as legal persons. It includes individuals, so-called natural persons, as well, but some portions of this Act require 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 of this Act. It is a construct for any persons whom an appointed official may have had incentives to Page 5 of 30

favor during the course of his time in office by virtue of their having important adjudicative decisions heard before his regulatory agency in which they were clearly vested. The drafter strongly considered including 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 its ease of application, enforcement and record-keeping. 15. Regulated industry as applied to Congressional elected officials. This concept is roughly analogous to the definition of regulated industry as applied to appointed officials. However, as discussed in the Official Comments to 402, the drafter has elected to limit the application of this concept to that officials participation on a legislative committee. Since elected officials includes offices such as the President and the Vice President who do not specialize in the same manner as Congressional 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 are not, i.e., those who work in either the Legislative or Executive branches of the Federal government and who are neither elected nor appointed officials. So, staff constitutes the vast majority of these two branches of the Federal government, and the drafter is aware that their duties, salary, experience and 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 most notably in 301. It includes everything from money to promises to give someone a job at an unknown point in the future. This definition has been constructed in this fashion with an eye to the many 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 such construction can reasonably be avoided.
Official Comment 1. This Act has carefully considered permanent regulative intent and should not lightly be regarded as impliedly repealed by subsequent legislation. If a subsequent law is to repeal this Act, it should do so explicitly and with the public having full notice of the actions and intent of the legislators who support such repeal.

105. Severability. If any provision or clause of this Act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act which can be given 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 be held to be unconstitutional or otherwise invalid. In such an event, the remaining provisions that can still 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 the singular, 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 generally only a matter of drafting style; singular words may be applied in the plural, and plural words may be applied in the singular. Only when it is clear from the statutory context that the use of the singular or plural 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 if one 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 the provisions 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 that a statute of limitations, designed to give people solace that once they are far away enough in time from 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 whatever penalties or remedies under this Act to the discretion of the prosecuting entity for it to determine on a case 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 to the fact that such action has the issuance of a right-to-sue letter as a necessary predicate, which is not itself subject to a time bar, and thereby provides definite notice that legal remedies are currently available 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 a candidate or his Treasurer has directly paid to do so, then he commits a corrupt practice in the first degree. If such person is not an individual, then the chief executive or executives of the person who has distributed the candidate telecommunication commits a corrupt practice in the first degree. (b) If any non-individual person, other than a candidates campaign in which all contributions are routed to the candidates Treasurer without exception, accepts contributions, which have been contributed with the intention of expressing support or lack of support for a candidate, then the chief executive or executives of the person who has accepted such contributions commits a corrupt practice in the first degree. (c) Contributions from any and all persons to a candidate or his Treasurer shall be subject to the same maximum limit as is imposed on individuals.
Official Comment 1. Subsection (a) aims to eliminate the confounding participation of groups and persons other than campaigns who deliver campaign messages via telecommunications during an election. The drafter sees a compelling interest in the public being able to correlate a candidate telecommunication with a specific candidates campaign for the purposes of accountability and clarity of messaging. Other persons may very well have an interest in speaking in an election in this fashion and in this medium, but this interest is decisively overshadowed by the publics interest 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 or in-kind contributions to the campaign but not at the weighty expense of the publics interest in being 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 or email. The drafter has omitted criminalizing messages delivered in these other media due to the high likelihood that unsuspecting citizens who are not well-versed in election law would be unfairly captured by the operation of such a law, which would then likely have a chilling effect on free speech. Also, these alternate media afford the recipient of the message a better chance of analyzing the source of the message as well as their possible motives by virtue of the recipient of the message being able to control the amount of time that he may inspect the message. No similar control exists for the recipient when messages are delivered via broadcast, cable or satellite communication. 2. Subsection (b) attempts to eliminate the existence of so-called PACs and Super PACs as well as any other legal entity set up exclusively to financially support a campaign, either directly or indirectly. Of course, some entities may have purposes other than simply managing indirect contributions to a given campaign, and such entities are not eliminated. They are simply banned from performing that task. The drafter sees the present state of the campaign finance system as a bizarre and inexplicable latticework of groups interacting amongst themselves, often at the expense of transparency from the perspective of the public. Further, the drafter sees minimal gain from this byzantine construction in terms of the freedom of speech that it may encourage. Indeed, Page 8 of 30

the current structure offers an end run around the statutory maximum caps for contributions to a campaign 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 or attack a given campaign. Again, the purpose of this subsection specifically and 201 generally is to provide a uniform framework from the perspective of the public in order to precisely correlate who 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 to meaningfully inhibit the free speech of contributors; it only controls the manner in which they speak 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 may contribute to a campaign. The drafter sees no compelling interest of the public being served by the present variance in the statutory maximum caps on campaign contributions and is somewhat at a loss to explain it. This subsection levels these maxima in the interest of basic fairness towards individuals. 4. This section in its entirety takes three, linear steps: subsection (a) streamlines the messaging of 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 any non-individual financial support for a campaign to the campaign itself and subsection (c) imposes a uniform maximum across all eligible contributors to a campaign. The present state of the campaign 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 for various parties under the law without a compelling reason for such discrimination. 201 is an effort to simultaneously erase this confusion as well as level the playing field for all persons involved.

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 of the person who has made a contribution and 2) the amount of their total contribution. (b) The Federal Elections Commission shall maintain a website detailing the contributions made to any candidate or his Treasurer. Only persons who have contributed a total amount equal to or in excess of 50% of the statutory maximum contribution need be included on the website.
Official Comment 1. This section highlights a secondary purpose of 201s uniformity provision, namely the goal of 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 their organization. This result is an affront to the publics compelling interest in transparency in their election 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 be compromised lest the public lose faith in the integrity of elections and vicariously the democracy itself.

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2. This section attempts to balance two competing goals: the compelling interest of the public to have the maximum amount of knowledge about contributions to campaigns and the interest of contributors to campaigns to be free from any public vendettas due to their support or lack thereof for a given campaign. The drafter does not underestimate the desirability to the public of a person being able to support a campaign whose platform may contain unpopular speech or principles 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 its concomitant chilling effect on the support of unpopular speech to be dwarfed by the probability of 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 to American society, but the drafter has prioritized one over the other in this section as a result of the determination that, without doing so, the result of regular and cataclysmic system failure reaches an unacceptable level of probability.

203. Contributions from Lobbyists Banned. If an individual makes a contribution to a candidate, a candidates Treasurer or any person who has been directed either by that individual or by operation of law to transfer said contribution to either the candidate or the candidates Treasurer and if said individual has also been a lobbyist at any point in the previous two years starting from the date of the contribution, he commits a corrupt practice in the first degree.
Official Comment 1. This section again resolves the deadlock of two competing American values: a lobbyists First Amendment right to free speech and the publics interest in maintaining a government free of undue influence and quid pro quos. In this instance, the drafter does not feel that this is a close decision, and this section is the logical, pre-election analog to 301. Lobbyists are always free to discontinue their employment or activity as lobbyists and thereby become free of the constraints of this section. However, while they maintain their classification as lobbyists, they hold positions of great influence and intimate contact with public officials and are therefore rightfully expected to hold a proportionately higher level of ethical and moral responsibility. In conjunction with the sections of Part Three, this section operates as a redundant level of protection from misconduct between lobbyists and elected or appointed officials, most notably through the establishment of quid pro quos. A lobbyist is entirely free to plead his case or to logically persuade an elected or appointed official to officially adopt his position on a given matter, but such persuasion shall not include the implication of financial assistance in that officials re-election. The First Amendment contains values that were not cheaply bought by the founders of the country, and the drafter has sacrificed the smallest possible sliver of them only to salvage the coexisting value of structural integrity 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 legal compliance as well as its overall strategic effectiveness, which is not to say that they would be incapable of determining the status of their contributors in this regard but rather that the requirement of reaching such a conclusion is better placed elsewhere. Also, if the onus were to be placed on a campaign for this purpose, it would encourage a malicious strategy of lobbyists who may not be sympathetic to a given campaign to entrap the campaign in accepting their contributions so as to attempt to ensnare the campaign in adverse legal ramifications. Lobbyists are in the best position to know their classification under the framework created under this Act, Page 10 of 30

and so, in addition to the reasons above, they are therefore best-suited to have criminal liability imposed 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 or appointed official commits a corrupt practice in the first degree. (b) Any elected or appointed official who, directly or indirectly, accepts anything of value from 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 to vote on matters about which they may lack knowledge or experience, lobbyists are intended to act as outside specialists to advise and persuade elected and appointed officials on the many matters and topics that may appear before a legislature or committee. Based on this purpose, the drafter makes the policy decision that the powers of persuasion for lobbyists should not legally extend beyond the cogency 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, as defined in 103, includes promises of value to be delivered at some future time possibly when that official is no longer in office. 2. In order to comply with this section, lobbyists and elected and appointed officials alike would likely do well to simply avoid meeting under casual circumstances. For example, a lobbyist who has had a few drinks at dinner may be naturally inclined to buy an elected or appointed official a drink in the course of a conversation. As this section allows for no de minimis exception whatsoever, such a seemingly benign social custom would technically result in the commission of a corrupt practice in the first degree. The drafter has elected to take this zero tolerance stance as the result of the massive potential 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 meet lobbyists out for dinner, but it is far from indispensible. This section in no way bans the meeting of elected and appointed officials with lobbyists in social settings; it is merely the advice of the drafter to avoid 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 the Secretary of the Senate, regardless of who they intend to lobby. This registration must include at the 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 requirements imposed 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 in this Act. (b) On Specific Matters Every elected and appointed official shall maintain a list of matters regarding their respective legislative, executive or administrative bodies. Any lobbyist who 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 wishes to lobby the elected or appointed official, (2) declaring whether he is in favor of or against the matter and (3) placing his signature after his declaration. (c) Pairing - On each matter that he intends to lobby with each elected or appointed official and based on the information provided in subsection (b), every lobbyist who has declared to lobby in favor of a matter shall each be randomly paired with a different lobbyist who has declared 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 one elected or appointed official, they shall not be paired together on the same matter with any other elected or appointed official unless such pairing is mathematically unavoidable. (d) Changed Position on a Matter If a lobbyist changes his position on a matter subsequent to being paired in accordance with subsection (c), he shall notify both the elected or appointed official in question and any and all other lobbyists with whom he has been paired with regard to that matter and that elected or appointed official no later than the commencement of his next 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 in accordance with subsection (c). (e) Effect of Lobbyist Signature When a lobbyist signs documents in compliance with subsections (a) and (b), his signature (1) affirms that all of the information given in compliance with subsections (a) and (b) is true and complete and (2) demonstrates his acceptance of the duty to update said information no later than the commencement of his next meeting or correspondence with an elected or appointed official if and when said information becomes untrue 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 with subsection (d), or (3) fails to timely update information provided in subsection (a) or (b) in accordance with 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 301 by establishing a system of rivals on the assumption that no one has a higher incentive to police a lobbyists 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 on behalf of whom that lobbyist represents, which is pertinent to 603, a provision that imposes a fine on those principals if and when their agent lobbyists are convicted of misconduct under this Act. As discussed in the Official Comments to 603, that fine is intended to provide additional incentives and pressure to channel the behavior of lobbyists towards its optimal, socially-efficient purpose. Page 13 of 30

2. Subsection (b) requires lobbyists to identify their positions on matters for pairing purposes. Once paired with a lobbyist who takes the opposite position on a matter, 303 criminalizes the contact of a lobbyist with an elected or appointed official when it does not take place in the presence of the other assigned lobbyist. In this manner, subsection (b) continues to build the needed structure in order to give 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 his signature after he completes the documentation required in those subsections, and the effect of his signature is given in subsections (d) and (e). 3. Subsection (c) details the process of pairing lobbyists in order to establish a system of rivals between them. The drafter reasons that lobbyists, as defined in this Act, are not ordinary petitioners under the First Amendment in that they are likely to be both significantly more sophisticated in complex matters of industry and governance as well as in positions of great influence either of their own accord or by proxy. These advantages give lobbyists a precarious position of strength when meeting with an elected or appointed official who may lack either or both. These qualities and their likely concomitant resulting influence if allowed to proceed unilaterally are what the drafter seeks to temper 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. For whatever reason, a lobbyist or his principal may feel that they wish to change their position on a matter at any time, and they may. However, this change in position must be reported to the entire paired group as well as the elected or appointed official in a timely fashion. Obviously, a changed position on a matter means that instead of having two (or more as the case may be) diametrically opposed lobbyists on a matter, it is possible that both lobbyists will have aligned interests and will therefore have significantly less interest in policing the other, which could result in a corrupting environment. In light of this, a lobbyist who changes his position on a matter is compelled to disclose this change, which will result in the dissolution of the pairing and the re-pairing of all concerned lobbyists with other, rivalrous groups. 5. Subsection (e) provides the effect of a lobbyist signature when given in accordance with subsections (a) and (b). A lobbyists signature is his declaration that the basic information that he has provided in both subsections (a) and (b) is both accurate and complete. Of course, it is possible that his circumstances may change, e.g., on behalf of whom he is lobbying or his position on a matter. In that 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 his changed circumstances. 6. Subsection (f) details three situations in which a lobbyist will commit a corrupt practice in the first degree under this section. First, the disclosure requirements of subsections (a) and (b) are entirely basic and require the simplest of assertions and disclosures, but the information provided is essential 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 is of such an elementary nature, the drafter concludes that a failure to provide it accurately necessarily implies the intent to deceive. Second, a failure to timely disclose a change in position on a matter threatens the very core of the system of rivals as detailed in this section, and when such failure occurs, the drafter conclusively presumes that it is the intention of the lobbyist to bypass the system for 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 provided was accurate, it must be timely updated in order to preserve the assurances of integrity sought after in this part. Page 14 of 30

7. A matter is often very complex and intricate, and the drafter does not anticipate that lobbyists will ever be wholly in favor of or wholly against a matter. It is likely to be the case that some parts will be objectionable to both lobbyists in a pairing and that some sections of a matter will be both favorable to both. However, the drafter anticipates that the lobbyists will still be sufficiently at odds such that they 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 given matter around its core issues, but that approach was abandoned for a multitude of reasons, not the least of which being a lack of data on what the complete ramifications of such a ban would ultimately mean. 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 petition the government for redress of grievances. Again, the drafter recognizes the supreme importance of this value in our Constitution and has generated the above structure of interaction for lobbyists with elected and appointed officials as a means of protecting both their rights under the First Amendment and the, at times, competing value of structural integrity in the system itself. The drafter does not in any 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 monitor each other when they do so. Petitioners who are not lobbyists as defined in this Act are wholly unaffected by this section specifically and Part Three generally. In brief, all lobbyists are petitioners under the First Amendment and as defined in this Act, but not all petitioners are lobbyists. The drafter concludes that petitioners who are not lobbyists pose a substantially smaller threat to the integrity of the system due to their comparatively less power and influence and therefore do not require 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 appointed official 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 corrupt practice in the first degree. (b) Any elected or appointed official who communicates, directly or indirectly, with any lobbyist while not in the presence of all of the other lobbyists assigned to him on that specific matter 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 elected or appointed official and a lobbyist is meant to bypass the system created under this Act, likely for a corruptive purpose. By compelling a lobbyist to be paired with a different lobbyist whose interest is diametrically opposed to that of the former and by mandating that they only communicate with their assigned elected or appointed official in each others presence, they both presumably have great incentives to police the behavior of the other. The drafter also imposes on lobbyists a duty to report possible violations of this Act in 501. 2. The drafter intends for the phrase in the presence as used in this section to be interpreted substantively given the conceptual purpose of this section as outlined in Official Comment 1. The Page 15 of 30

drafter believes that the main test of whether a communication has taken place in the presence of another lobbyist should hinge on whether the lobbyist was conscious of and attentive to the communication. For example, if Lobbyist A and Lobbyist B are paired to speak on a matter with Official and Lobbyist A falls asleep drunk at the bar in which they are meeting, Lobbyist Bs continued conversation with Official from that point on shall not be considered to have taken place in the 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 and otherwise distracted, any continued conversation between Lobbyist B and Official does not take place in the presence of Lobbyist A. On the other hand, if Lobbyist A and B wish to have a conference telephone call with Official, any communication with Official during that call shall be considered to have 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 with 303(a) so long as all parties are sent copies of all correspondence sent to Official. As shown in the last two examples, simultaneous physical presence is not necessary to fulfill the substantive purpose of this provisions concept of in the presence. The substantive question on the issue of presence during a communication is whether the other lobbyist has been placed in a situation where he has both the 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 the assumption that any minor exception could wind up swallowing the entire rule. If a lobbyist wishes to contact an elected or appointed official even for rote tasks such as scheduling appointments, he must take steps to make sure that other lobbyists assigned to him on that matter are in the presence of that 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 prosecutorial discretion is the better tool with which to make that assessment. Such an assessment should at the minimum take into account the length of the communication, the exact circumstances of the communication, as well as any other witnesses to it that may provide some substance of what was said. 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 to meet with that official for whatever tactical purpose. This Act does not prohibit this behavior as the drafter expects it to ultimately fail. For one, sending emails or other correspondence to an elected or appointed official does not require a lobbyists counterpart on a matter to consent; all that is required is that he or they be sent an identical copy of such correspondence. Many lobbyists meet with many elected and appointed officials, and even if a large number of them stalemate each other into not being able to meet with a given official, it is impossible from a game theoretical perspective for both sides to completely neutralize each other such that no debate on a given matter is heard by the official. Besides, the two sides of a given matter will never be uniformly staunch, and that additional variance ensures that some officials will certainly hear a debate on the matter that they can then share with their colleagues as they see fit. Moreover, the drafter does not see a practical way in which to compel 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 and handled 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 meet personally with elected or appointed officials, and the drafter for all of the above reasons sees no reason why lobbyists ought to be afforded unique privileges in this regard simply by virtue of being paid 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 containing pertinent 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 first degree. At the minimum, the website database shall include the lobbyists full name, his last known business address, the relevant provision of this Act under which he has either been convicted 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 contains an 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 as outlined in 504 and 505.
Official Comment 1. The drafter recognizes that lobbyists, as with all petitioners, have a crucial First Amendment right to petition the government for a redress of grievances. The First Amendments guarantee of the right to so petition the government is a crucial value in American society, but it is not the only value that we have. There is also the value, under the present circumstances a competing value, that says that in a democratic system of government, the electorate should be afforded transparency in the actions of those who are in regular, intimate contact with elected and appointed officials. The drafter has concluded that the minor disclosure compelled here, already presumably available from other public records, is an appropriate set of information to amass in one place for the benefit of the public and other state and local governments who may be lobbied by the same people. 2. Subsection (b) declares that any settlement between a prosecuting entity, presumably the Department 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 the perspective 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 via settlement would provide an impermissibly lavish incentive to settle at the expense of the publics compelling interest in knowing who may be regularly flouting important protections of the governments integrity. It is likely that any accused lobbyist will have many other incentives to settle, and the fact that such an exemption is off the table is simply a fixed variable to assess in any given 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 through a securities market shall pay a tax rate, not to exceed 60%, on that gain equivalent to triple that of 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-dealing and insider trading that arises among lawmakers and regulators. Elected and appointed officials all Page 17 of 30

have access to unique, often extremely momentous information by the nature of their positions of which the general public is often unaware, and this is not an occasional happening. It is entirely conceivable that an elected official may have access to a new piece of salient, actionable information every day. Due to both the high quality and quantity of information that exists in these groups, the drafter believes that policing such a situation is both unrealistic and ineffective and therefore does not acknowledge 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 from owning securities for the reason that there are potentially unforeseen consequences of such an approach. One such concern is that such a ban may have the unintentional effect of dissuading a large portion of supremely qualified and ethical potential public officials from considering the job at all due to superior financial opportunities elsewhere. Without more information, the drafter is unable to conclude that this concern is sufficiently insignificant as to warrant a flat ban. Regardless, the act of self-dealing on information gained by virtue of being placed in a position of public trust is thoroughly intolerable, and the drafter has decided to split the difference in this section by significantly decreasing 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 as applied to appointed officials for four (4) years after the expiration of the officials term, then he commits 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 the appointed official. If the appointed official is reappointed to his same office at any later point, a new 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 on some level throughout his term. However, the hopping in and out of regulatory agencies into the private sector which is being regulated by such agencies creates a high incentive for an appointed official to engage in self-dealing at the expense of the public. Therefore, this section creates what would be analogous to a non-compete clause that private companies often place in contracts with employees. By barring an appointed official from his regulated industry for four years after the expiration of his term, the drafter concludes that this will provide more guarantees that the appointed official 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 definition employed in this Act for regulated industry is intended to both cast a wide net as well as provide straightforward rules. Generally speaking, the drafter has defined regulated industry as applied to appointed officials in such a manner as to cordon off appointed officials from any prospect of semblance of self-dealing when it comes to his decision-making in his office. The main focus of three of the subsections of the definition is any person who has been a party to or who has in any way participated in an adjudication before that appointed official. The reasons for this should be selfevident. The fourth subsection intends to close a possible backdoor by capturing the principals of any lobbyist agent who has been utilized to lobby the appointed official without the person itself becoming technically captured by the operation of the first three subsections. The argument that the concept of regulated industry as herein defined may chill the participation of persons in the adjudication or lobbying process due to their inability to later employ a given appointed official is its own refutation. The desire to employ such a person at a later time at worst implies the desire to influence his office improperly and at best implies a failure of imagination in how to attract other talent. Appointed officials command vast resources and make rulings and decisions that have broad impact on society. The fear of not being able to employ a given appointed official for four years after he leaves office simply by virtue of having to engage him in his current office is of no significance when compared to the assurances that the public ought to receive that that official is discharging his duties with the highest standard of ethical care. 3. The drafter is aware that many companies and business organizations diversify their interests across many areas of business. The concept of regulated industry as applied to appointed officials as defined in this Act is intended to place substance over form, i.e., to ignore the structure of the position in relation to other, seemingly distinct organizations in favor of focusing on the substantive alignment Page 19 of 30

of interests across a company and all of its branches and subsidiaries. Had the drafter elected to not structure his analysis along these lines, a lavish loophole would have been created in that a massive company that has a major interest in, say the pharmaceutical industry, but that has also purchased and owns other completely unrelated subsidiaries, could bypass the substantive purpose of this entire part by simply offering the appointed official a nominal job in one of its industrially unrelated subsidiaries while 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 more substantive inquiry into the total interest of any organization that offers an appointed official a position.

402. Bar from Employment in Regulated Industry; Congressional Elected Officials. (a) If an elected official in the Legislative branch of the Federal government accepts employment 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 he commits a corrupt practice in the first degree. (b) The four (4) year term will commence on the day after the official end of the elected officials membership on a legislative committee. If the elected official becomes a member of that committee at any later point, a new four (4) year bar under subsection (a) will commence from 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 they are compelled to make decisions on a myriad of issues affecting such a variety of industries that it would be improper and unrealistic to bar them from every industry in which they cast a vote on a given 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 have specialties, as demonstrated by their membership to certain legislative committees. For example, an elected official who serves on the Armed Services Committee will likely deal with many matters of great import to defense contractors and other such entities. It is this committee membership on which this section focuses. In the above example, the elected official who leaves the Armed Services Committee, either by leaving office entirely or simply becoming a member of a different legislative committee, will be considered barred from the regulated industry as applied to Congressional elected officials according to the four subsections of the definition. This time bar, as in 401, is intended to exclude the allure of outside influences who may attempt to persuade the decisions of such elected officials improperly. 2. The drafter is aware that this section potentially bars Congressional elected officials from a vast array of private positions after they cease to serve in office. However, the drafter concludes that being an elected official is a position of great honor, privilege and most importantly, public trust. The interest of the public in having an elected official that assesses legislation based on his and his constituents best interests is so compelling that it warrants the strong protective measure detailed in this section. As noted in the Official Comments to the definition of regulated industry as applied to Congressional elected officials, the offices of the President and Vice President are intentionally excluded. Those offices do not have any analogous specialties as exist in the Congress, and they are therefore not suitable individuals to receive this treatment, lest they be completely barred from accepting employment once they leave office. Page 20 of 30

 403. Bar from Employment as Lobbyists. Any elected official, appointed official or staff who, for the remainder of his life, becomes a lobbyist 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 an extreme measure but necessary for the sake of redundancy in the system created in this Act to guard against corrupt practices. Part Three of this Act establishes an incentive-based adversarial system to compel lobbyists to monitor each others conduct. It might be asserted that that part alone should be sufficient protection to the integrity of the system when it comes to lobbyists such that this section would not be necessary. However, the drafter believes that the danger of entrenched powerbrokers lingering in and around the government poses a sufficient threat as to warrant redundant levels of protection. Elected and appointed officials hold great privilege and make powerful associations based on their positions; their experience as lawmakers or regulators as well as the likely camaraderie that they would maintain with still serving elected or appointed officials make their continued presence in the 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 any law abridging the right of the people to petition the government for a redress of grievances. The drafter understands the monumental importance of this value in American society and has therefore drafted this section as to preserve a former elected or appointed officials First Amendment right to petition the government on any issue as he sees fit. This section only precludes him from doing so for profit or in any manner that would place him in the definition of lobbyist as defined in this Act. The drafter concludes that, under such circumstances, any petitioning undertaken by a former official will minimize any residual, undue power he may still wield as a result of his having once held office while still 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 Lobbyists All elected officials, appointed officials and lobbyists are under a duty to report to the Department of Justice the commission of any element of a corrupt practice, regarding which the elected official, appointed official or lobbyist has actual or constructive knowledge. (b) For Staff Staff is under a duty to report to the Department of Justice the commission of any 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 each other 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 a body would likely be both wasteful and largely ineffective for many reasons, e.g., the likelihood of corruption of the regulatory body itself, the waste of resources in chasing down offenders. In recognition 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 enforcement investigation. 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 a higher standard of knowledge given their special access and frequency with which they interact with each other and therefore a more stringent duty to report, which is to say that their willful ignorance to events that they should know constitute or signal an element of a corrupt practice does not satisfy the duty imposed by this section. In other words, turning a well-timed blind eye at a critical juncture during a conversation where a corrupt practice has taken place will not save an elected or appointed official from a breach of his duty to report. On the other hand, staff is held only to a duty to report on matters about which they have actual knowledge. Staff, as defined in this document, are generally less-trained, short-term employees who the drafter feels will be exposed to unnecessary levels of risk by imposing the same level of duty to report due to the likelihood of their failure to appreciate the gravity of certain, seemingly benign events, given their likely inexperience in the area. However, the drafter does not agree that staff should be completely absolved from maintaining any duty to report under this Act. Staff is relied upon by elected and appointed officials to a massive extent, and they are in a unique position to be able to regularly inspect the behavior of such officials. Due to such exposure, their duty to report on any activity about which they have actual knowledge is both indispensable and required under this section.

502. Failure to Report. (a) For Elected Officials, Appointed Officials and Lobbyists The failure of any elected official, appointed official or lobbyist to report the commission of any element of a corrupt practice, regarding which the elected official, appointed official or lobbyist has actual or constructive knowledge, is a corrupt practice in the first degree.

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(b) For Staff The failure of any staff to report the commission of any element of a corrupt practice, regarding which the staff has actual knowledge, is a corrupt practice in the second degree.
Official Comment 1. This section is included to give practical effect to 501. A duty to report is a meaningless one if there is to be no penalty for a breach of that duty. By defining a failure to discharge ones duty to report as imposed under 501 as a corrupt practice, the drafter assumes that a failure to discharge a 501 duty to report implies ones complicity in the original offense itself and therefore ought to carry the 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 report an 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 practice gives those upon whom duties have been imposed to raise their behavior and awareness to an appropriate level where those who are truly not complicit in such activity will be able to avoid being captured in any of the above statutes. 2. This section provides the disincentive for people already in unique positions to shirk the responsibility of monitoring the behavior of elected and appointed officials. However, positive incentives to report such activity have been included in 603 and 604. By incentivizing both forms of reporting behavior, the drafter has made the policy decision that false alarms are preferable to unreported 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 has testified, assisted or participated in any manner in an investigation, proceeding or hearing regarding the commission of a corrupt practice in the first or second degree when such testimony, 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 first degree.
Official Comment 1. This section is a necessary, practical adjunct to 501(b). In that section, the drafter imposes a duty to report the commission of any element of a corrupt practice under this Act. However, the drafter recognizes that staff will be wary of reporting in accordance with that section so long as they suspect that they or their jobs themselves are vulnerable to retaliation for such reporting. This section intends 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 drafter believes that to make such action a corrupt practice in the first degree will go far towards eliminating such behavior and thus to ease the concerns of staff. The compliance of staff with 501(b) is a crucial element of the enforcement of the provisions of this Act, and the drafter does not take the resulting obligation placed on them lightly. 2. The scope of retaliation prohibited under this section is wide and includes everything from outright termination of employment to more subtle penalties, e.g., a decrease in pay. Of course, this section does not prohibit these actions when they are based on otherwise good cause, and the timing Page 23 of 30

of the negative actions towards staff will be significant, circumstantial evidence to determine whether the elected or appointed official who takes them are in defiance of this provisions protective measures. 3. The drafter has elected not to include staff who may be retaliated against in the civil action framework 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 stated in Official Comment 1, an elected or appointed official who retaliates against staff takes a very serious roll of the dice in doing so, considering that if there is any semblance of impropriety in his course 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 operate to reward that reporting staff monetarily for a successful conviction based on such report, and the drafter believes that in this manner, staff has reasonable protections against retaliation as well as a reasonably 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 the possibility of any deluge of complaints by staff. The elements of corrupt practices outlined in this Act 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 they have actual knowledge. Therefore, considering the clarity of the rules to be policed and the limited knowledge requirement imposed on staff for purposes of his duty to report, good faith reporting should be relatively clear. The drafter has included this additional element solely to avoid protecting excessive 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 or 303 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 lobbyists shall be entitled to a right-to-sue letter from the DOJ against the accused lobbyist for improper political competition if the accused lobbyists alleged breach of the aforementioned sections of this Act: 1) took place while paired with the lobbyist or lobbyists on a specific matter with a specific elected or appointed official, and 2) relates to the accused lobbyists conduct with that given pairing on that specific matter with 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 shall be immediately informed by the DOJ both that it has received a report accusing a lobbyist in their pairing of an alleged breach of 301, 302 or 303 of this Act as well as the precise date that such report was received.
Official Comment 1. This section acts as a private enforcement mechanism against lobbyists who act in breach of this Act. The structure imposed in Part Three depends on practical enforcement for its theoretical Page 24 of 30

workings to have effect. On this point, the drafter reasons that redundancy in the area of practical enforcement is valuable. For any number of reasons, the Department of Justice may be unwilling or unable to bring a criminal prosecution against a potentially offending lobbyist. In that event, the creation of a civil action occurs in order to give the party with the most incentive to bring such a suit an opportunity to both enforce the spirit of this Act as well as personally gain from a positive judgment. 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 relevant sections of this Act is presumed to have been in breach in order to gain a political advantage over the other lobbyists with whom he has been paired on a given matter with a given elected or appointed official. The actions that have been criminalized in 301, 302 and 303 are extremely simple by design such that one would know instantaneously if one was in breach of them. It is the desire and goal of the drafter in this section as well as many others in this Act to regulate the behavior of lobbyists by incentivizing their policing of one another. To that end, this Act has intentionally pitted them against one another in order to wring out the socially optimal result from their lobbying behavior, 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 rightto-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 actually made the report of the suspected wrongdoing himself. In that case, it is possible that that lobbyist would not know either that a member of his pairing is under investigation for potential wrongdoing or for how long. In either event, his knowledge of such report and resulting investigation is important for his being able to monitor and enforce the rights granted him under this Act should they arise due to 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 the Department of Justice, pursuant to 504. (b) A petitioning lobbyists cause of action for improper political competition against any lobbyist with whom he has been paired shall be adjudicated as successful and the respondent lobbyist shall be found liable if the petitioning lobbyist proves by the preponderance of the evidence 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 of improper political competition as a mechanism of controlling lobbyist behavior by indirectly incentivizing their protection of the integrity of the system via the pursuit of their own rational interests. As it is a new action without any applicable jurisprudence to articulate precisely what is meant by it, subsection (a) makes clear that the prerequisites for the issuance of a right-to-sue letter under 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 in 504. Again, the provisions of 301, 302 and 303 are plain and easily avoided with any effort. If one does come in violation of those provisions, the drafter is comfortable in presuming that they have done so with less than honorable intent. Indeed, as with all of the criminal provisions in this Act, the actions that have been criminalized are criminalized simply because they have occurred, i.e., ones intent 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 the activities that are forbidden with supreme clarity and can think of few values more important to society 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 carry a penalty for each convicted offense of a term of incarceration of not less than ten (10) years without 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 shall carry a penalty for each convicted offense of a term of incarceration of not less than one (1) year without 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 in them to faithfully carry out their duties in public office. Simultaneously, when one holds an elected or appointed office in the government, there are many forces and interested parties who are incentivized to attempt to coerce or otherwise unduly persuade an elected or appointed official to treat their position favorably, regardless of the interests of that officials constituency or title. Given the great power and privilege that our elected and appointed officials wield and the great incentives they face in compromising their position for their own personal benefit, the drafter aims to complicate this thus far routinely-solved cost-benefit analysis on the part of the elected official or appointed official by introducing a strong disincentive to make those who would engage in a corrupt practice to think twice. Those who would aim to manipulate the government via corrupt practices as stated in this Act will 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 to criminalize an omission to report on the part of staff lightly. Indeed, it is a necessary evil from the perspective of giving meaning to their duty to report. However, the drafter has concluded that such a breach on the part of staff must fall into a lesser degree offense due to the likelihood that staff have significantly less to gain from corrupt practices and also due to the fact that the drafter is compelling their vigilance for the benefit of this Act. The drafter also anticipates that prosecutorial discretion based on the circumstances of each unique set of facts will be an essential aid to determine the level of culpability on the part of staff for a given omission and ultimately whether or not to press charges against him. 3. The drafter has deliberately omitted the criminalization of what likely would have been referred to as an attempted corrupt practice. The omission is the result of the nature of what is being criminalized. This Act attempts to fracture the consolidation of power between public and private forces and those who may be complicit in such a structure. In so doing, the drafter has criminalized certain activities that involve speech and communication when taking place with a person who the public has placed in a position of great trust and responsibility. To criminalize the attempt of such crimes would likely be to criminalize certain thoughts themselves, which the drafter finds to be an impermissibly intrusive, unreliable and ultimately wasteful exercise. The statutes in this Act that criminalize and classify behavior as corrupt practices are designed to be satisfied at a very early point Page 27 of 30

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

602. Disgorgement of Salary; Awarded Funds. (a) Disgorgement An elected or appointed official who is convicted of the commission of a corrupt practice in the first degree shall be disgorged of the annual salary earned for the year in which the first corrupt practice has been found to have occurred as well as any salary the elected or appointed official collected after that year for so long as he held that same office. (b) Award An individual who has reported an elected or appointed officials commission of any element of a corrupt practice in the first degree, regardless of his being under a 501 duty to report, and whose reporting has led to a conviction on the basis of given information shall receive compensation in the form of the total monies disgorged from the elected or appointed official pursuant to 602(a). (c) Multiple Reports In the event that more than one individual has satisfied the elements of 602(b) as set forth above, then the first individual to have reported will be entitled to the entire award under 602(b), unless a subsequent individual to report gave substantial, additional information in which case the award will be divided evenly among as many such individuals who had so contributed.
Official Comment

1. This section operates to supplement 601s penalty provisions as well as to provide the second
portion 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 being in breach of 303 in year three of his time in office, under this section, that official is to be disgorged of the entire salary he had earned in years three, four, five, six and seven. The drafter concludes that this forfeiture of salary is appropriate for two reasons. First and more theoretically, the positions of elected and appointed officials are positions of great public trust and responsibility. To have been convicted of a corrupt practice in the first degree demonstrates a breach of that covenant with the public, a breach that does not repair itself, no matter how long an elected official or an appointed official serves faultlessly thereafter. Second and more concretely, this approach adds necessary incentive for elected and appointed officials to avoid the behavior proscribed in this Act by exposing them 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 has therefore included substantial financial incentives for doing so in the form of the years of salary disgorged 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 is found 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 commission of each corrupt practice in the first degree, whether it results in a criminal conviction or a finding of civil liability based on improper political competition, shall each be liable for a fine in the amount of five million USD ($5,000,000) for each convicted offense or finding of civil liability.
Official Comment 1. 302 requires lobbyists to register themselves as well as any and all persons on behalf of whom they are lobbying. This procedural requirement is important for both general transparency purposes as well as attaching pecuniary liability to the principal for the action of its agent. The point of the fine introduced in this section is to provide another layer of protective incentives, this time on the party that has contracted with the lobbyist for his services. Considering the wide variance in resources available to persons who employ lobbyists, the drafter has concluded that this fine could not be higher, lest it lead certain persons to abandon protecting their policy interest in a matter altogether. The fine imposed here is based on the routinely-used legal concept that a principal is the best cost avoider in terms of policing the actions of his agent. The principal will have had opportunity to vet a potential lobbyist, examine his background and thoroughly educate him on how to conform his behavior to comply to the provisions of this Act. Therefore, a failure of a lobbyist to conform his behavior to the terms of this Act speaks to the failure of the principal to properly police and educate its agent. The fine introduced in this section provides additional incentive to control the behavior of lobbyists by attaching liability to their principals. Also, this provision in no way eliminates the ability of a principal to contract with a lobbyist agent so as to shift some of the risk away from itself and onto the lobbyist or his firm.

604. Successful Civil Action for Improper Political Competition. A petitioning lobbyist in a civil action for improper political competition shall be awarded a judgment in the amount of not less than five million dollars ($5,000,000 USD) for each finding of civil liability against the respondent lobbyist.
Official Comment 1. This section imposes a substantial financial liability on a lobbyist who has been successfully sued for improper political competition. The drafter is very cognizant of the number of smaller lobbyists who may simply not have anywhere near the resources in order to pay such a fine. However, it is not difficult to determine how to avoid coming in conflict with the provisions of this Act. Indeed, this Act has intentionally created bright line rules for ease of understanding for those to whom a provision applies. The drafter has some concern about the possibility that a liability of this size may make some lobbyists simply unable to assume the risk of lobbying, but the proper monitoring and selection of lobbyists by their principals or contractors is of significant consequence to the proper functioning of the government. This section is the penalty portion of 505, and as such, it is a part of the second tier of enforcement of lobbyist actions. For this reason, the fine amount must not be of simply a nominal amount, lest the only practical recourse for improper political competition become a criminal prosecution from a third party. 2. The minimum on civil awards provided in this section provides the necessary, high incentive for lobbyists to monitor each others conduct. The participation of lobbyists in the enforcement of the spirit of this Act by the pursuit of their own interests is a crucial secondary layer to the criminal provisions of this part. Considering the exposure to liability for lobbyists under this Act, the drafter anticipates that lobbyists will have to devise detailed evidentiary systems for their time as well as Page 29 of 30

their conduct. The drafter considers such an additional expense to be simply part of the cost of doing business, especially when ones business operates in the supremely sensitive area of persuading the opinion of public officials.

END OF DOCUMENT

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