Supreme Court Gay Marriage Ruling Will Tighten Ethics And Campaign Finance Laws

WASHINGTON — The Supreme Court’s ruling overturning the 1996 Defense of Marriage Act will alter a host of ethics and campaign finance laws that apply to elected and appointed officials as well as campaign donors.

Ethics laws requiring disclosure of spousal income, banning gifts to spouses from certain sources and banning nepotism will now apply to elected, executive and federal agency officials in same-sex marriages and unions. Also, married same-sex couples will now be able to give joint contributions from a single bank account to political campaigns.

These changes underline how much the DOMA affected federal statutes, beyond those debated when the law was passed. The court, in the ruling issued Wednesday, noted that, because of DOMA, key “government-integrity rules do not apply to same-sex spouses.”

The government watchdog group Citizens for Responsibility and Ethics in Washington filed a brief in the DOMA case arguing that the application of DOMA provided exemptions from ethics laws for married gay couples and harmed the public by opening avenues for nepotism and corruption while limiting certain disclosure laws.

“It means that the same sorts of restrictions that apply to heterosexual married couples will apply to gay married couples,” said CREW executive director Melanie Sloan after the court’s ruling. “It’s terrific because there shouldn’t be exemptions from disclosure.”

The first real example of the disclosure exemption under DOMA emerged when Sean Eldridge, a Democratic congressional candidate and the husband of Facebook millionaire and New Republic owner Chris Hughes, filed his first financial disclosure report, as required by federal ethics laws. Normally, candidates must list their spouse’s assets in such reports, but Eldridge did not disclose Hughes’ vast wealth because DOMA prevented recognition of their marriage.

This exemption from disclosure also applied to agency heads in the executive branch. Under DOMA, the same-sex spouse of an agency head could receive payment from a company or industry under the agency’s regulatory power without making that payment public information.

Gifts over $1,000 and honoraria given to spouses will also now be required to be disclosed on financial disclosure reports filed by both congressional candidates and executive officials covered by disclosure laws in the Ethics in Government Act. Same-sex spouses will also be covered by a host of other congressional ethics laws limiting payments and paid travel, among other things.

Bribery laws will be expanded to cover same-sex spouses of federal and District of Columbia officials, previously not the case under DOMA. As the CREW brief noted, “as a result [of DOMA], same-sex spouses might avoid culpability for engaging in conduct that would be criminal for opposite-sex married couples.”

While most of the changes to ethics laws involve expanding restrictions and disclosure requirements to cover same-sex spouses, campaign finance law will be ever so slightly expanded.

The Federal Election Commission will now have to allow same-sex couples to make joint contributions from a single bank account.

In an April advisory opinion brought about by Dan Winslow, a Senate candidate in the Republican special primary election to fill the seat vacated by Secretary of State John Kerry, the FEC ruled that because of DOMA same-sex couples could not make joint contributions from a single bank account.

The FEC opinion states that, if the court overturns DOMA, the FEC would happily revisit the issue. “If DOMA is held to be unconstitutional by the Supreme Court – or is otherwise modified or repealed – the Commission will, upon request, revisit this issue,” it says.

Paul Ryan, a lawyer with the Campaign Legal Center, a campaign finance watchdog group in Washington, D.C., doubted that the FEC would even need to issue a new opinion. “I wouldn’t think there would be any need to go back to the FEC for clarification, it’s pretty simple.”

The court ruling will also have an effect on federal lobbying laws, which in the House ban the spouses of Congress members from lobbying their spouse’s office. In the Senate, spouses are banned from lobbying anyone in the body. These laws will now have to recognize same-sex spouses as lobbyists and extend these restrictions to them as well.

Congressional insider trading rules enacted in the 2012 STOCK Act, requiring members of Congress and their spouses to report stock trades more frequently and banning them from using information gained from their position to trade stocks, will now apply to same-sex spouses.

Anti-nepotism laws also will be expanded to cover the same-sex spouses of federal judges. Laws requiring judges to recuse themselves from cases where their spouse holds a financial interest will now apply to same-sex spouses of federal judges.

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