A Question of Ethics

Must Traffic Tickets Be Disclosed to Ethics Committee?

June 25, 2007
Q: I am a Member with a question regarding the new resolution requiring the Committee on Standards of Official Conduct to take action whenever a Member is formally charged with criminal conduct. Last week, a police officer pulled me over for failing to use my turn signal. At first, I was quite sure that the officer had made a mistake because I specifically remembered signaling. As it turns out, unbeknownst to me, my rear indicator light was out. The officer gave me a ticket stating that I had violated Virginia Section 46.2-860 (whatever that is!), and that I have an August court date in Arlington. Under the new resolution, do I need to report this to the ethics committee?

A: On June 5, in response to the indictment of Rep. William Jefferson (D-La.), House Majority Leader Steny Hoyer (D-Md.) successfully introduced a resolution providing that when a Member “is indicted or otherwise formally charged with criminal conduct” the Committee on Standards of Official Conduct must either conduct an investigation or report to the House its reasons for not conducting an investigation.

Your situation raises two questions regarding Hoyer’s resolution. First, does it apply to traffic tickets like yours? And second, if the resolution does apply, does it require Members to self-report?

The first question turns on whether you were “indicted or otherwise formally charged with criminal conduct.” Believe it or not, while not all traffic tickets are criminal charges, a violation of the statute cited on your ticket is a criminal offense. Under the statute, failure to give adequate signal of one’s intention to turn is reckless driving, which is punishable by up to 12 months in jail. So, regardless of whether you are actually convicted, you at the very least have been charged with criminal conduct. Because the new resolution applies to such charges, it appears to cover your ticket.

The resolution’s legislative history supports this interpretation. During the debate preceding the resolution, Hoyer himself responded to repeated questions from Rep. David Dreier (R-Calif.) regarding whether the resolution would apply to minor offenses like yours. Hoyer responded that for criminal charges “whatever the act … the ethics committee will look at it.” He added that he had “full confidence” that, in reviewing matters covered by the resolution, the ethics committee would choose not to investigate “de minimus” charges. In fact, in the specific case of traffic tickets, Hoyer said he expected that the committee would have a form available stating that it would not take further action.

Assuming then that the resolution applies to your ticket, the next question is whether you should report it to the ethics committee. Again, this issue arose during the legislative debate. Dreier asked Hoyer whether Members would be compelled to inform the committee when they face criminal charges. Hoyer responded: “There is nothing in there that says the Member is compelled to do anything.”

Nonetheless, even if the resolution does not explicitly require Members to disclose criminal charges to the committee, there are reasons why a Member might choose to do so voluntarily. For one, disclosure limits the risk that a Member will be perceived as trying to conceal something from the committee.

On the other hand, disclosure does carry risks of its own. Even though Hoyer said he has full confidence that the committee would summarily dismiss trivial offenses such as traffic tickets, there is no guarantee how the committee will view your charge. Once a criminal charge is before the committee, it is for the committee to determine whether to conduct an investigation. While it seems unlikely the committee would investigate a mere traffic ticket, until the committee clarifies its position in this regard I suppose it is impossible to be certain what the committee would do.

The uncertainty surrounding committee action touches on a second potential consequence of disclosure. Because of this uncertainty, some Members choose to obtain legal counsel any time the committee even considers their conduct. As Dreier observed during the resolution’s debate, the resolution could turn a simple traffic ticket into a “huge legal fee.”

Yet where a Member merely transmits a traffic ticket to the ethics committee and does nothing more, it is conceivable that a Member might choose to do so without legal counsel. A Member might wonder what useful advice an attorney could provide regarding mailing a ticket and therefore decide to retain legal counsel only if the committee took further action. If a Member does choose to disclose on his own, he should first confirm that the offense for which he is charged is actually a criminal offense.

To sum up, while not all traffic tickets are charges of criminal conduct, your reckless driving charge appears to be covered by the new resolution. By the way, other reckless driving offenses in Virginia include exceeding the speed limit by 20 miles per hour or more, as well as driving a vehicle with “improperly adjusted brakes.” So keep an eye on your speedometer and get those brakes checked.

© 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

Is It a Crime to Trade Votes for Earmarks?

June 11, 2007

Q: I am an ethics reform activist who is pleased with the recent attention to the issue but eager for more. My question concerns your May 27 column regarding trading earmarks for votes. You suggested that the recent amendments to House Rule 23 potentially could forbid the age-old practice of logrolling with earmarks. If this turns out to be the case, I think it is great news. But, in my view, ethics violations sometimes result in little more than a slap on the wrist from the ethics committee, so I’d like to go one step further and make trading earmarks a crime. In fact, as a former practicing attorney, I think a case can be made that, under the current federal bribery statute, trading earmarks for votes already is a crime. After all, if it is bribery for a Member to trade legislative action for money, it seems it also should be bribery to trade his legislative action for another Member’s vote in favor of his earmark. Is it? And, if not, does the House’s change to Rule 23 mean that earmark trading is now a crime?

A: In his 1992 book “Earth in the Balance,” Al Gore wrote: “I have followed the general rule that I will vote for the established farm programs of others in farm states … in return for their votes on behalf of the ones important to my state.” Given your views on ethics reform, you might consider this an incriminating admission. But I suspect that most people would disagree. After all, Gore was merely acknowledging his participation in the long-standing legislative practice of trading votes. For a Senator and presidential candidate to be so candid about this suggests that, at the time of Gore’s book, no one had any serious doubts that trading earmark votes was legal.

However, in the 15 years since Gore’s book was published, things have changed. There are few hotter issues today than ethics reform, and earmarks are at or near the top of the agenda. But have things changed so much that trading earmark votes is now a crime?

To answer this question, the place to start is the federal bribery statute. Under this statute, it is a crime if a Member “corruptly” accepts or solicits “anything of value” for himself or for any other person or entity in return for being influenced in his performance of an official act.

To make the case that this statute covers trading earmarks, the first hurdle you face is establishing that when a Member bargains for a vote in favor of his earmark, he solicits or accepts anything of value. In the typical bribery case the anything of value is money. For example, former Rep. Duke Cunningham (R-Calif.) pleaded guilty to bribery for accepting money from defense contractors in exchange for favorable treatment.

Yet anything of value need not always be money. Courts have found a variety of non-monetary benefits to qualify, including loans and sexual favors, among others. Yet, no federal court has ever held that the term “anything of value” applies to a legislative vote.

Despite this precedent, an argument exists that an earmark vote should qualify as anything of value. The value a Member receives when someone votes in favor of his earmark, you could argue, is the political benefit he reaps from increased popularity among his constituents. You could even argue that the very fact that Members enter into earmark vote trades in the first place proves that such votes are things of value. If they were not something of value, you might say, why would Members trade them?

Yet, even if you could establish that earmark votes qualify as anything of value, to make your bribery case, there is an even bigger legal hurdle you would need to clear. Under the statute, you would need to establish that when Members trade earmarks they are behaving corruptly.

The reason this is such a difficult hurdle in this case is that, to interpret terms such as “corruptly,” courts often look to tradition and customary practice. In the 45 years since passage of the federal bribery statute, no court has ever convicted a Member for trading earmarks. This may be in part because the Supreme Court has said, albeit in a different context, that the federal bribery laws “deal with only the most blatant and specific attempts of those with money to influence governmental action.”

In the face of this precedent, you could argue that the House’s new earmark rule changes things. The new rule, you could argue, reflects that the times when a Member now trades earmarks, he is acting corruptly.

The problem with this argument is that an amendment to the House ethics rules would be an awfully odd (and likely unconstitutional) way to effect a dramatic expansion of the scope of the federal bribery statute. If the House intended to make earmark trading a crime, it could have sought to amend the bribery statute itself, which, of course, also would have required passage in the Senate and the signature of the president. The House did not do so, and the language of the bribery statute is just the same as it has been throughout the long history in which Members have traded earmark votes.

Yet the good news for you is that my view regarding the inapplicability of the bribery statute is no guarantee that a federal prosecutor will not seek to apply it. A prosecutor who shares your zeal for ethics reform might try to invoke your reading of the statute. In today’s climate, what better way for a reform-minded prosecutor to make front-page news than to be the first to prosecute a Member for trading earmarks? Therefore, though your bribery case seems a difficult one to make, your question is a reminder that today’s earmark traders in Congress not only face potential ethics charges but also run the risk of being the guinea pig for an enterprising prosecutor.

© 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.