A Question of Ethics

Will Ethics Committee Recommend Discipline in Vitter Case?

July 23, 2007

Q: I have been following the story regarding Sen. David Vitter’s (R-La.) alleged contacts with the “D.C. Madam,” who is said to have operated an escort service in Washington, D.C. I wondered whether Vitter’s alleged phone calls to the service could lead to action by the Ethics Committee. I have read conflicting reports. Some say the Ethics Committee might recommend discipline against Vitter, while others say the committee lacks jurisdiction because he was not in the Senate at the time of the alleged contacts. Will the Ethics Committee recommend discipline?

A: You are really posing two questions: Does the Senate Ethics Committee have jurisdiction over Vitter’s alleged contacts with the D.C. Madam? And, if the committee does have jurisdiction, is it likely to recommend discipline?

The first question raises a much-debated issue regarding the scope of the committee’s jurisdiction. Some argue that the committee has broad authority to investigate essentially anything that might bring the Senate into disrepute, in which case the allegations concerning Vitter could qualify. Others respond that the committee’s jurisdiction should be limited to the “official conduct” of Senators and Senate employees, in which case the allegations would not qualify.

The Senate’s authority to discipline its members originates in Article I, Section 5 of the Constitution, which states in relevant part: “Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.”

Under this constitutional authority, in 1964 the Senate passed Resolution 338, establishing what is now the Ethics Committee. That resolution authorizes the committee to “investigate allegations of improper conduct which may reflect upon the Senate, violations of law, violations of the Senate Code of Official Conduct, and violations of rules and regulations of the Senate, relating to the conduct of individuals in the performance of their duties as Members of the Senate, or as officers or employees of the Senate.”

The italicized clause appears to limit the committee’s jurisdiction to the performance of official Senate duties. If this were right, then the committee would not have jurisdiction over conduct occurring prior to joining the Senate, such as Vitter’s.

However, the Senate ethics manual takes the position that the italicized clause modifies only some of the language that precedes it, and specifically does not apply to the clause “improper conduct which may reflect upon the Senate.” The manual quotes from a 1954 report regarding a resolution to censure Sen. Joseph McCarthy (R-Wis.): “It seems clear that if a Senator should be guilty of reprehensible conduct unconnected with his official duties and position, but which conduct brings the Senate into disrepute, the Senate has the power to censure.”

In applying this standard to Vitter, one could argue that, even though his alleged conduct occurred prior to joining the Senate, it nevertheless now reflects upon the Senate and brings the Senate into disrepute. If so, the timing of Vitter’s conduct would not remove it from the committee’s jurisdiction.

On the other hand, timing aside, one could argue that the nature of Vitter’s conduct puts it beyond the committee’s jurisdiction. This is because the manual defines “improper conduct” as conduct that is so notorious or reprehensible that it could discredit the institution as a whole, not just the individual. An argument exists that Vitter’s conduct doesn’t rise to this level. Yet, the committee could decide that it does and thus claim to have jurisdiction.

Assuming that the Ethics Committee would claim jurisdiction, the next question is whether the committee is likely to exercise it. Last week the D.C. watchdog group Citizens for Responsibility and Ethics in Washington formally requested an investigation, in part because solicitation of prostitution is a criminal offense.

Because of CREW’s request, the Ethics Committee will at the very least conduct a preliminary inquiry, even if it is very limited in scope. The purpose of such an inquiry is to determine whether there is cause to conclude that a violation has occurred. If the committee concludes there is such cause, the Ethics Committee may then proceed to a full-fledged adjudicatory review to determine whether to recommend discipline.

Yet, it is unclear that CREW’s request will even reach an adjudicatory review. While the watchdog group has raised the possibility that Vitter committed a criminal offense, criminality alone may be insufficient to justify an adjudicatory review. After all, the committee has limited resources to devote to investigating ethics violations, and there are lots of potential criminal offenses that the committee would not be too keen to make the subject of such an adjudicatory review. For example, while some states have statutes criminalizing adultery, it seems unlikely that the committee would initiate a review of every potential violation of such statutes.

Perhaps it is no surprise then that the Senate has never disciplined someone for anything like Vitter’s conduct. Nor has it disciplined someone for conduct that occurred prior to joining the Senate. While it is possible the Senate could start doing so now and that CREW’s request could lead to an adjudicatory review, I wouldn’t bet on it. Sure, one might argue that conduct like Vitter’s brings disrepute upon the Senate as an institution. However, if the Ethics Committee were to begin investigating everyone who has ever engaged in similar conduct in their private lives, the disrepute that might result from the spectacle of such investigations could be even greater.

© 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

Charity Events Are Exceptions to New Gift Ban Rules in the House

July 9, 2007

by C. Simon Davidson

Q: I am a longtime House staffer who recently, out of the blue, received an invitation to a fundraiser for victims of Hurricane Katrina. It is a $1,000-a-plate lunch here in D.C. prepared by the nation’s best Cajun chefs. The corporation sponsoring the event offered complimentary tickets to me and my husband. I was thrilled! My husband, who is a stay-at-home dad, is a serious foodie and, on my staffer’s salary, we rarely have an opportunity like this. However, when I told a friend in our office about the tickets, she said she thought the new ethics rules require me to decline the tickets. She said she’s pretty sure the corporation that invited me employs lobbyists and that staffers may no longer accept gifts of any kind from entities that do so. May I accept the tickets?

A: Your friend is right that, with the January amendments to the House ethics rules, there is now a broad prohibition on accepting gifts from lobbyists and entities that employ lobbyists. So, as a general rule, if the corporation employs lobbyists you may not accept a gift from it. However, you can if it qualifies for an exception, and the good news for you is that the list of exceptions is long. Therefore, before taking your friend’s advice and declining the invitation, I’d take a close look at them.

The one that seems most likely to apply concerns attendance at charity events. Clause 5(a)(4)(C) of House Rule 25 states that you “may accept a sponsor’s unsolicited offer of free attendance at a charity event.” The purpose of this exception is to enable Members and staff “to lend their names to legitimate charitable enterprises and otherwise promote charitable goals.”

While an invitation to charity events has been an exception to the general gift restrictions for more than decade, there was some confusion about whether the charity events exception survived the January amendments banning all gifts from lobbyists. On May 24 the House resolved that confusion. It amended the rules to clarify that Members and staff may still accept a sponsor’s invitation to a charity event regardless of whether the sponsor retains or employs a registered lobbyist.

So far so good, but you’re not in the clear yet. This is because application of the charity events exception can be complicated. In fact, the ethics manual devotes several pages to discussing the elements of the exception. The manual states that, for an invitation to an event to qualify, it must meet three conditions.

First, the event must be a charity event, as defined by the rule. This means that the primary purpose of the event must be to raise funds for an organization that is qualified under the Internal Revenue Code to receive tax deductible contributions. Here, the $1,000-a-plate lunch is a fundraiser for Katrina victims. This is a good sign. However, you should still confirm that the primary purpose of the lunch is to raise funds for a legally qualifying entity.

If this condition is met, the next requirement is that the invitation come from the actual sponsor of the event. This can be tricky because the House Rules Committee’s definition of “sponsor” is probably different from how you are accustomed to the term being used with reference to charity events. In common usage, the term “sponsor” often refers to anyone who makes a financial contribution to an event. However, the definition applicable to the charity event exception is much narrower.

For purposes of the charity events exception, a sponsor is “the person, entity, or entities that are primarily responsible for organizing the event.” Moreover, someone “who simply contributes money to an event” is specifically not a sponsor under the rule. In your case, then, you need to confirm that the corporation offering you the tickets also is primarily responsible for organizing the event.

The third requirement is that the invitation to the event be unsolicited. You say your invitation came “out of the blue.” If that’s right, and if the event and corporation meet the other two conditions, you may accept the offer of free attendance to the lunch.

However, there is one last issue to consider. What does “free attendance” cover? Under the rule, the scope of free attendance depends on what is provided to other attendees of the event. For example, free attendance may include the event fee, food, refreshments, entertainment and even local transportation, so long as those items are furnished to all attendees as an integral part of the event.

However, free attendance does not encompass entertainment that is merely collateral to the event, or food and refreshments that are taken other than in a group setting with all, or substantially all, event attendees. For example, if, after the Cajun lunch, there is a reception to which only certain VIPs are invited, you may not attend that reception under the charity event exception.

In sum, assuming all guests are served the same food and refreshments, and all the other requirements are satisfied, it appears that in this case, there is such a thing as a free lunch. And, perhaps best of all, the rule allows your husband to have one, too.

© 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.