State ethics regulators are poised to raise the amount paid to Texas lawmakers for daily expenses during a legislative session — a decision that would also raise the amount lobbyists can spend wining and dining those legislators without naming the lawmakers they wined and dined.
“It’s like the link between judicial pay and legislative retirement benefits,” says Paul Hobby, who chairs the Texas Ethics Commission. Legislative retirement benefits are based on the salaries of state judges, and when lawmakers give judges a raise, their own retirement packages get a little sweeter. “You change some benign thing and also change some malignant things.”
State lawmakers get a daily stipend, or per diem, while they’re in Austin. The Internal Revenue Service sets an allowable amount for every city each year, based on the costs of meals and lodging and so on, and some businesses use that to get around the hassle of recording every single expense for people who are traveling or working out of town.
Austin is expensive, and prices here are rising quickly. This year, the tax agency set the Austin number at $210 per day. That money is not income in the eyes of the IRS — just a reimbursement for average expected expenses for an out-of-towner working in the state’s capital city.
The Texas Ethics Commission sets the per diem amount for lawmakers, usually keying off of the IRS numbers. Commissioners will adopt a new standard at their February meeting, and the proposal before them would raise the legislative per diem to $190 from the current $150. At the start of the 2013 session, the commission — at the urging of legislative leaders — left the per diem at $150 when it could have raised it to $179.
Politicians are sensitive about looking like they are getting anything that could be construed as a pay increase. That’s why they’ve recommended taking less than the full $210 allowed by the IRS this year. The net effect of the planned increase — assuming the Legislature meets for 140 days — is that lawmakers will be eligible for $26,600 in per diem payments this year, up from $21,000 at the old rate.
But there is more to this, as is always the case when it comes to politicians and money. That per diem rate is tied by law to a limit on what lobbyists can spend on a lawmaker without having to report which lawmaker they spent it on.
Lobbyists are required to report everything they spend on lawmakers, whether it’s for gifts, entertainment, food, whatever. The laws are stricter about gifts: Any gift that costs more than $50 has to be reported along with the name of the lawmaker who got it.
The required lobby reporting is different when the spending is on food, beverages, transportation and lodging, or entertainment — whether it’s for a state official or employee, or for the spouse or dependent child of that state official or employee. When lobbyists spend less than a set amount on those things, they don’t have to report the name of the lawmaker or employee who benefited.
Your friendly neighborhood lawmaker can eat and drink on a lobbyist’s tab without the rest of us finding out about it so long as the price is not too high. That might or might not be an advantage for the lobbyists involved; most of them keep detailed records of their spending for their own files even if the state doesn’t require them. But the loophole is a boon to politicians, who don’t have to answer questions about lobby reports that detail where and when and how much they ate and drank at someone else’s expense.
Not hard to imagine the campaign ads that might result, is it?
The trigger price for “detailed reporting” is tied to the per diem amount paid to state legislators. A lobbyist can spend up to 60 percent of that amount without having to report the name of the lawmaker who was entertained and fed.
At the current per diem, lawmakers can anonymously enjoy up to $90 per day in lobby-paid food, entertainment, beverage, transportation and lodging. Under the proposed new rate, it will rise to $114 per day, or 60 percent of the $190 per diem.
If the Ethics Commission changes the per diem rate next month, it will add $24 to the amount lobbyists can spend schmoozing legislators outside of the Capitol every day.
A lawmaker or staffer who really wanted to take advantage of the rules (and the favors of lobbyists) could ride pretty high for the 20 weeks of the legislative session.
And the honest players on both sides — state officials and lobbyists alike — get tarred in the process.
Lobbyists have legitimate reasons to talk about policy and proposed laws and the impact of what the Legislature does. The right to pester the government is protected by the First Amendment, whether you are rich or poor, individual or corporate.
The conversations are probably more pleasant if you can have a cup of coffee or a cookie or a meal — maybe even a strong drink. It’s just a matter of deciding what amount falls safely short of a bribe, and how much of this should be reported publicly with the public officials’ names attached to the benefits.
Under current law, those conversations can and often do take place at pricey gatherings where a lawmaker, an aide or a close family member can have a night on the town, talk about legislation with players who hope to shape it, and never tell anyone where they went, who was there or how much it cost.
All they have to do is make sure that no single lobbyist spends enough to connect the benefits to the beneficiaries.