A Question of Ethics

Rogers' Resolution Tests Breadth of Earmark Rules

May 29, 2007

Q: I am chief of staff for a Member who is among the group of freshmen committed to serious ethics reform. The Member has asked me for advice regarding Rep. Mike Rogers’ (R-Mich.) resolution to reprimand Rep. John Murtha (D-Pa.) for allegedly vowing to deny Rogers earmarks in retaliation for Rogers’ effort to strip a Murtha-backed earmark from the intelligence authorization bill. While the House voted to table Rogers’ resolution largely along party lines, the Member wants me to put politics aside and determine whether the alleged conduct did actually violate House ethics rules. So my question is just that. Assuming the facts are as alleged in the resolution, did Murtha violate the House Code of Official Conduct?

A: Because you have asked me to do so, I will assume for the moment that the resolution’s allegations are true. However, I’ll return to this assumption below because I think it raises an issue regarding the use of a House resolution to reprimand a Member without involving the Committee on Standards of Official Conduct.

So, assuming the allegations are true, did Murtha violate the Code of Official Conduct?

The resolution states that Rogers offered and voted for a motion to remove from the intelligence bill a $23 million earmark for a drug center in Murtha’s district. As a result, Murtha, who chairs the Appropriations subcommittee on Defense, is alleged to have yelled at Rogers in the House chamber: “I hope you don’t have any earmarks in the appropriations bills because they are gone and you will not get any earmarks now and forever.”

A supporter of Rogers’ resolution could argue this is a clear violation of the recently adopted rules regarding earmarks. Clause 16 of House Rule 23 states: “A Member … may not condition the inclusion of language to provide funding for a congressional earmark … in any bill or joint resolution … on any vote cast by another Member.” Here, Rogers could argue, Murtha conditioned any future defense earmarks for Rogers upon Rogers’ vote to remove Murtha’s earmark from the intelligence bill.

Murtha might respond that his conduct, at worst, constituted retaliation, which Clause 16 of Rule 23 does not prohibit. Clause 16 concerns conditioning earmarks on a Member’s future vote, he could argue, whereas Murtha’s alleged conduct relates to a past vote by Rogers.

More significantly, Murtha might say, unless Clause 16 was intended to revolutionize the way the House legislates, it can’t possibly apply to an off-the-cuff remark like his, especially one for which he has since apologized. Otherwise, Clause 16 could potentially reach the backroom logrolling and arm-twisting in which Members engage all the time.

So who is right?

In the five months since the new rules package was adopted, Clause 16 of House Rule 23 has received little attention. While the ethics committee has released memorandums clarifying other aspects of the package, it has not addressed Clause 16. In the absence of ethics committee guidance, it is anyone’s guess how it might be interpreted.

On its face, the rule seems to say that a Member “may not condition” a Congressional earmark “on any vote case by another Member.” Does this bring an end to the venerable practice of trading earmarks for votes? May Members no longer gather support for a contested bill by attaching earmarks attractive to the bill’s opposition? Is logrolling a thing of the past? What about the expenditures that were attached to the Iraq war-funding bill to woo opponents?

If trading earmarks for votes is a thing of the past, it is the recent past. As recently as 2004, before Clause 16 became law, an ethics committee report explicitly condoned the practice. The report called logrolling “a longstanding and accepted part of the legislative process” and stated that it is an accepted practice for legislators “to trade legislative votes.” Moreover, “there is nothing improper about a Member’s conditioning support for particular legislation on … future consideration by another Member of an official matter of importance to that Member’s constituents.”

Members have not been shy about trading earmarks for votes. For example, in October 2005, after Sen. Tom Coburn (R-Okla.) challenged an earmark for museums in the home state of Sen. Patty Murray (D-Wash.), Murray opposed Coburn’s challenge on the Senate floor, stating that she would take a long, hard look at the projects of any Members who opposed her earmark. “What is good for the goose is good for the gander,” Murray said. “[I]f we start cutting funding for individual projects, your project may be next.”

Does Clause 16 of Rule 23 change all of this? The legislative history of Clause 16 suggests it might. When the House considered the new rules package in January, the summary of the package in the Congressional Record stated that the change to Rule 23 “prohibits trading earmarks for votes.”

Where does this leave us regarding Murtha? Well, if the clause does ban “trading earmarks” and “arm-twisting for votes,” Murtha’s alleged conduct may well have violated the rules. But, without clarification from the ethics committee, one cannot be sure. However, even if the committee were to conclude that Clause 16 does not squarely capture Murtha’s conduct, the ethics manual states that Members must comply with the spirit as well as the letter of the rules. Usually, it is for the ethics committee to determine whether a Member has complied with the spirit of the rules.

Finally, there is one more reason why it might have made sense to involve the ethics committee in resolving Rogers’ complaint. And this gets back to your request that I assume the resolution’s allegations to be true. The problem with that request is that, without an investigation, the resolution’s allegations are just that: allegations. This is why the more common way to raise an issue of compliance with the ethics rules is not through a privileged resolution but via a complaint with the ethics committee. Had Rogers filed a complaint, the ethics committee could have conducted an investigation to determine the relevant facts and also could have resolved just how far-reaching Clause 16 of Rule 23 really is.

© 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.


A Question of Ethics

Accuracy, Not Deadline, Is Top Priority on Financial Disclosures

May 14, 2007

Q: As a Member of the House, I am required to submit a financial disclosure form every May. Because of the time involved in gathering all of the necessary information, I usually delegate that task by asking an aide to fill out the form for me. Of course, before filing the form, I always review it carefully to confirm its accuracy. This year, however, in the weeks before the May 15 deadline, I have been traveling a great deal and have not had time to review my aide’s draft closely.

My aide said I should file the form anyway. She said she was very careful in gathering the required data and that she doubts there are any errors. Besides, she said, the committee allows Members to amend their forms anytime before Dec. 31. So, as long as we meet the May 15 deadline, I can review the form more carefully once my schedule settles down and then submit an amended disclosure if I discover any errors. I’m not thrilled with the plan, but I am not sure if I have any other options. What do you think?

A: Your schedule and tomorrow’s deadline have left you with a choice between punctuality and accuracy. Your aide has recommended punctuality. I disagree. Here’s why:

No matter who fills out your financial disclosure form, you are the one who must sign it and, by doing so, assume responsibility for its accuracy. The language accompanying your signature states: “I certify that the statements I have made on this form and all attached schedules are true, complete and correct to the best of my knowledge and belief.”

Above your signature box, there is a reminder that false statements could subject you to penalties and sanctions. Because of the certification, this is true whether you filled out the form yourself or had someone do it for you. Therefore, before adopting your aide’s plan, you might want to consider the potential penalties and sanctions.

Most significantly, false statements on the forms could result in criminal liability. Under Title 18, U.S. Code, Section 1001, it is a crime if you knowingly and willfully make a materially false, fictitious or fraudulent statement in any matter within the jurisdiction of Congress. The Committee on Standards of Official Conduct has said this statute applies to the financial disclosure form. Convictions can result in up to five years in prison.

In addition to criminal sanctions, false statements on the financial disclosure form could also result in civil liability. Under the Ethics in Government Act of 1978, the attorney general has the jurisdiction to bring a civil action against anyone who knowingly and willingly falsifies any information that is required on the financial disclosure form. Penalties include fines of as much as $11,000.

As if these potential consequences were not enough, the House ethics committee can also impose penalties for false statements on the disclosure forms. Your aide is right that the committee has established a process whereby Members may amend their form before Dec. 31. However, for a couple of reasons, your aide’s approach to the amendment process carries substantial risks.

First, the committee might reject your amendment or deem it to have been made in bad faith. Even before Dec. 31, the committee requires certain conditions to be met before it will accord a presumption of good faith to an amendment. For one, the amendment must not be clearly intended to “paper over” an earlier misfiling. In addition, the Member must show that the amendment was occasioned by either the prior unavailability of information or an inadvertent omission. This means the amendment will not be presumed to have been made in good faith if it was submitted as a result of, or in connection with, committee action discrediting the initial filing.

In addition to the risk that the committee will not accept your amendment as timely, there is a second and much larger risk in your aide’s approach. Even if the committee were to accept your amended form, a government attorney might still take the position that the initial filing exposes you to liability. This means if your initial filing were to contain errors, fixing those errors would be no guarantee a government attorney would not seek sanctions based on them. While seeking sanctions based on errors that were ultimately corrected would be an aggressive position to take, it would not mark the first time a government attorney adopted an aggressive position in pursuing sanctions.

On the flip side, there also are penalties for filing your form late. However, the $200 fine for a tardy filing somehow seems preferable to the jail time or five-digit fines that could result from false statements. Moreover, you are not subject to the late fee unless you file your form more than 30 days after the May 15 deadline.

Finally, perhaps the best news of all is that you can request an extension, and there is still time to do so before Tuesday’s deadline. This is because the committee requires not that an extension has actually been granted before the deadline but only that it has been requested. A committee attorney confirmed this policy at a training session last week. Therefore, instead of incurring the risks inherent in submitting a form you have not reviewed, a better approach might be simply faxing a letter to the committee requesting an extension and stating why one is necessary. The fax number is 202-225-7392.

© 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.