Q: I am a former attorney for the Senate Ethics Committee. Despite having left the Senate for the private sector, I remain an “ethics junkie” and have been closely following the committee’s inquiry into Sen. Larry Craig (R-Idaho). What fascinates me most is that it all stemmed from conduct in an airport bathroom that didn’t seem to have anything to do with the Senator’s official duties. Therefore, I always considered it “the” test case of the breadth of the Ethics Committee’s jurisdiction. In light of the committee’s admonition letter to Craig, I take it that the committee asserted jurisdiction. Does this mean the committee’s jurisdiction is essentially boundless?

A: Like you, what I found most interesting about the committee’s inquiry into Craig was the jurisdictional issue. Unfortunately, the committee’s admonition letter did not directly address the intriguing question you raise, and instead left open whether the committee might recognize some limits to its jurisdiction.

Craig’s attorney, Stanley Brand, first challenged the committee’s jurisdiction in a letter to the committee last September. Brand argued there was no precedent for the committee to assert jurisdiction over what he called “a misdemeanor for disorderly conduct wholly unrelated to the performance of official duties.” A review of the history of sanctions for improper conduct, the letter continued, established that “the Senate has exercised jurisdiction only in circumstances involving the performance of official duties or actions implicating a Member’s office.” Brand urged the committee to end its inquiry “to avoid creating precedence for the filing of future complaints over purely personal conduct unrelated to the performance of official Senate duties.”

Wilson Abney, who worked as Ethics Committee counsel and staff director from 1980 to 1992, told Roll Call at the time: “I am not aware of any case in which a Senator was investigated [by the Ethics Committee] because he or she was alleged to have violated a law and there was no nexus between the conduct and the Senator’s Senate service.”

Thus, the Craig inquiry appeared to set up resolution of a fundamental question: Does the committee have jurisdiction over a Senator’s conduct that does not violate a specific Senate rule and is unrelated to official duties?

Unfortunately, the committee’s letter did not squarely answer this question. First, the committee admonished Craig for appearing to use his official position to influence the arresting officer. The committee stated that, following his arrest, Craig showed the officer a business card identifying himself as a Senator and asked: “What do you think about that?” The committee concluded he knew or should have known that a reasonable person could view his action as an improper attempt to use his position as a Senator to receive special treatment. (Lesson: It’s best to avoid flashing Senate business cards not just to police officers but also to judges, hostesses at crowded restaurants, and anyone else who reasonably could view the gesture as an improper attempt to gain special treatment.)

Second, the committee stated that Craig violated the Code of Ethics for Government Service by attempting to withdraw his guilty plea. The committee stated: “it appears you are attempting to withdraw your plea in significant part because your initial calculation that you could avoid public disclosure … of this matter by pleading guilty proved wrong.” This, the committee concluded, was an “attempt to evade the legal consequences of an action freely undertaken,” which was contrary to Paragraph 2 of the Code, which requires Senators “never to be a party to … evasion” of federal and state laws and regulations. (Lesson: Even where available, don’t file a legal motion the committee might construe as an attempt to evade the law?)

Finally, the committee stated that by using his campaign funds to pay for his legal defense without first obtaining permission from the Ethics Committee, Craig had committed a technical violation of Senate Rule 38.2, which prohibits conversion of campaign funds for personal use. According to the Ethics Manual, Rule 38.2 does not prohibit the use of campaign funds for legal expenses that are incurred in connection with official duties. In Craig’s case, however, the committee did not reach the issue of whether his expenses qualified as being in connection with official duties. Instead, the committee admonished Craig because he did not obtain its approval before using campaign funds for legal expenses, as the manual requires. (Lesson: If the manual says to ask first, ask first.)

In sum, the committee admonished Craig for what it construed to be official conduct: giving the appearance of using an official position to gain special treatment, evading the law by attempting to withdraw a freely given guilty plea, and using campaign funds for legal expenses without obtaining the committee’s approval. This leaves open the question of whether it ever would assert jurisdiction over purely personal conduct, unconnected to official duties, which, going back to your original question, could in effect make its jurisdiction boundless. Ultimately, if a situation arose in which the committee wanted to assert jurisdiction over purely personal conduct, I suspect that it probably would — which is different from saying it should.

© Copyright 2007, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.

Q: I am a Senate staffer with a question about earmarks for campaign donors. (By earmarks, I mean federal funds specifically designated for an individual recipient.) I have read allegations that Sen. Mary Landrieu (D-La.) committed an ethics violation by inserting an earmark into the 2002 D.C. appropriations bill that benefited a campaign donor. Because the Senator whom I work for is on the Appropriations Committee, I try to keep him apprised of all the rules governing earmarks. However, I was not aware of any rules forbidding earmarks for campaign donors. In fact, in my experience on the Appropriations Committee, it seems common for Senators to insert an earmark that benefits a campaign donor. Do the rules really forbid earmarks for campaign donors?

A: There is no rule explicitly forbidding earmarks that benefit campaign donors. This does not mean, however, that such earmarks are always without risk. Rather, depending on the circumstances, an earmark for a campaign donor might be an ethics violation, or even a federal crime. Moreover, although the law does not require Members to ensure that their earmarks never benefit campaign donors, Members should be aware that when an earmark they propose specifically benefits a major contributor, critics might demand an investigation, as has happened with Landrieu.

The criminal statute in question is the bribery statute, and there are two ways Members can violate it: bribes and gratuities. Under the bribes section of the statute, it is a crime for a Member to seek or receive something of value “in return for being influenced in the performance of an official act.” The key for liability is a quid pro quo. In the case of earmarks, in order for there to be criminal liability, when the Member seeks or receives the thing of value, she must have the specific intent to be influenced in an official act (e.g., a vote) with regard to the earmark in exchange for the thing of value.

Criminal liability under the gratuity section of the statute also requires a causal link, but of a different kind. For gratuities, the statute forbids a Member from accepting something of value “for or because of any official act.” In the case of an earmark, in order for liability to attach, the earmark need not necessarily be in exchange for a thing of value. Rather, it is enough that a Member accepts a thing of value that the Member knows to be given “because of” the Member’s official act with respect to the earmark. Some have said the gratuity section of the statute applies when the thing of value is understood to be a reward for the official act. In either case — bribes or gratuities — there cannot be liability without a link between the thing of value and an official act.

As to a violation of the ethics rules, it is less clear whether a link is required for a violation. In the absence of a rule forbidding earmarks for campaign donors, it seems unlikely that the Senate Ethics Committee would recommend sanctions against a Senator merely because the Senator’s earmark happened to benefit a donor. On the other hand, on at least one occasion, the committee has used the catchall clause prohibiting “improper conduct which may reflect upon the Senate” to condemn a Senator for activity benefiting a contributor even where the activity did not violate a specific rule or statute. In that case, the conduct was not a single earmark for a campaign donor. Rather, it concerned Sen. Alan Cranston (D-Calif.), one of the “Keating Five,” and his alleged two-year effort to influence a government agency on behalf of a major donor.

The Ethics Committee’s scant record of sanctions against linking campaign contributions and official acts suggests a reluctance to take action merely because official acts benefit donors. Similarly, in interpreting the bribery statute, some courts have raised questions about whether campaign contributions should be the basis for a bribery prosecution.

This is not surprising. If campaign contributions could serve as the basis for bribery prosecutions, the line between legitimate contributions and bribery would be difficult to draw. After all, it is hardly unusual for Members and contributors to share interests or policy goals, and therefore for Members’ acts to benefit contributors. What would be unusual would be the opposite: someone donating to the campaign of a Member who opposed the donor’s interests.

Landrieu’s case is illustrative. Last month, a watchdog group requested that the Ethics Committee and federal prosecutors investigate Landrieu for sponsoring a $2 million earmark in the 2002 D.C. appropriations bill for Voyager Expanded Learning just four days after her campaign received $30,000 in contributions from donors associated with the education firm. Landrieu’s office has responded by releasing documents that show her interest in the firm’s reading program dated back many months before the campaign contributions. Assuming the contributions were not in exchange for or because of an official act by Landrieu, under the applicable rules and law, it is difficult to argue that the fact that her earmark benefited a contributor is enough to justify sanctions. But, as Landrieu has learned, it might be enough to draw scrutiny and demands for an investigation.

Clearly, the law does and should prohibit constituents from purchasing federal earmarks. But the law does not prohibit Members and campaign donors from having common interests. The Supreme Court may have summed it up best: To hold that Members commit a crime “when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries … would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the nation.”
 

© Copyright 2007, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.