A Question of Ethics

2009 - A Busy Year in Congressional Ethics Comes to a Close

December 15, 2009

In January 2007, when this column first appeared in Roll Call, the subject of Congressional ethics had never been hotter. It was one of the main issues Democrats had used to sweep into power, gaining 31 seats in the House and six in the Senate. Exit polls in those elections suggested that “corruption” was more important to voters than terrorism, the economy or even Iraq.

What followed was a flurry of legislative activity surrounding ethics, the most significant of which was the September 2007 passage of the Honest Leadership and Open Government Act. Amid all the focus on ethics, Roll Call introduced this column to answer both real and hypothetical “questions of ethics.”
Yet despite all of the attention on ethics in 2007, skeptics wondered whether it would last. And they had good reason to ask. Many times in the past, it had seemed, when corruption scandals had thrust government ethics into the limelight, the attention soon faded without much impact.

Three years later, a look back at 2009’s leading ethics stories reveals that the issue is still going strong. In fact, whereas 2007 was the Year of Congressional Ethics, ethics may have made even greater news in 2009.

The year started fast. Immediately upon taking office, President Barack Obama put lobbyists on notice that they would be a prominent target of his administration’s ethics policy. On his first day in office, Obama signed an order restricting the lobbying by personnel who leave his administration as well as the work of former lobbyists seeking to enter his administration. The order also included a tougher ban on gifts to executive branch employees. Over the remainder of the year, more restrictions on lobbying would come, including strict guidelines on communications with executive branch employees regarding the Troubled Asset Relief Program and stimulus funding. Many restrictions applied only to registered lobbyists. Perhaps not surprisingly, 2009 saw the biggest spike ever in lobbyist deregistrations.

January also saw the first-ever meeting of the Office of Congressional Ethics, which was created to review allegations of misconduct against House Members and staffers to determine whether the allegations merit referral matters to the Committee on Standards of Official Conduct. The OCE’s first year of existence was not without controversy, including public disagreements with the House ethics committee regarding OCE’s role and procedures. How those disagreements ultimately play out remains to be seen.

The new year also brought a new twist to the biggest ethics story of 2008: the trial and indictment of Sen. Ted Stevens (R-Alaska). Just days after Stevens’ career in the Senate officially came to an end, allegations surfaced that the prosecution team that obtained a guilty verdict against him may have intentionally withheld key evidence during the trial. This would eventually lead to the government’s decision to dismiss all charges. In an April court filing requesting that the guilty verdict be thrown out, the government acknowledged that the prosecution had withheld key cross-examination materials and had made arguments to the court that were factually inaccurate. Some members of the prosecution team now face investigations into their own conduct.

Meanwhile, both chambers’ ethics committees were busy with investigations in 2009. In the Senate, the Ethics Committee investigated Sens. Chris Dodd (D-Conn.) and Kent Conrad (D-N.D.) for their participation in a bank’s VIP loan program. It also investigated Sen. Roland Burris (D-Ill.) for statements he made regarding the circumstances of his appointment to the Senate by former Illinois Gov. Rod Blagojevich (D), who himself was indicted for exercising power for his own “financial and political benefit.” Sen. John Ensign (R-Nev.) also was the subject of an investigation relating to his handling of an affair with the wife of a former staffer. Other investigations are likely ongoing, but details have not been made public.

In the House, a leaked internal memorandum from the House ethics committee showed that, as of July, there were open investigations relating to as many as 30 current Members. One investigation making headlines concerned allegations that Rep. John Murtha (D-Pa.) and other Members had accepted bribes from the PMA Group, a lobbying firm that dissolved after an FBI raid on its office.

Yet despite all the ethics committee investigations, 2009 did not bring any formal discipline. The Senate committee dismissed the complaints against Dodd and Conrad, stating that they did not violate ethics rules but should have exercised “more vigilance” to avoid an appearance of “preferential treatment.” The committee issued a public letter of qualified admonition to Burris that, while harshly worded, did not amount to formal discipline. On the House side, the ethics committee announced the outcome of several investigations, none of which resulted in discipline of a Member.

One former Member did face discipline of another kind, however. In August, former Rep. William Jefferson (D-La.) was convicted of bribery, racketeering and money laundering in connection with an investigation that famously involved the discovery of $90,000 in cash in a freezer in Jefferson’s home. One prosecutor called Jefferson’s actions the most extensive and pervasive pattern of corruption in the history of Congress, and Jefferson received the longest prison sentence ever for a Member, 13 years. Judge T.S. Ellis, who handed down the sentence, told Jefferson: “Public corruption is a cancer. It needs to be surgically removed.”

Removing that cancer altogether won’t happen overnight, if ever. Indeed, a look back at 2009 suggests that the storm of ethics activity that began in 2007 was more than a passing shower. While the subject of government ethics might not enjoy its current prominence forever, the issue does not appear to be going away anytime soon. See you in 2010.

© Copyright 2009, 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

What Is a Letter of Qualified Admonition?

December 1, 2009

Q: As a longtime Chicago resident, I have been keeping a close eye on the saga surrounding Roland Burris’ (D-Ill.) appointment to the Senate by former Gov. Rod Blagojevich (D). Prosecutors opted not to press charges, and the Senate Ethics Committee a few weeks ago announced that it had concluded its investigation and issued a public letter of qualified admonition to Burris. In response, Burris has said that the committee cleared him of the charges. Others have said the letter had the opposite effect. I am having trouble assessing who is right. What is the significance of a letter of qualified admonition?

A: This question goes right to the heart of the authority of the Senate Ethics Committee, so let’s start there. The committee was established in 1964 to oversee the Senate’s authority to discipline its own Members. One of the committee’s primary duties is to investigate allegations of Senators’ misconduct, beginning with what is called a “preliminary inquiry.” After the committee conducts such an inquiry, it has several options. One of those options is to issue a public letter of admonition. According to the Senate resolution governing the committee’s procedures, such a letter may be appropriate if there is evidence of a violation, but the violation is “inadvertent, technical, or otherwise of a de minimis nature.” A letter of admonition “is not considered discipline” and is not subject to appeal.

In Burris’ case, on Nov. 20 the committee issued a “Public Letter of Qualified Admonition” to Burris for “actions and statements reflecting unfavorably upon the Senate in connection with [his] appointment to and seating in the Senate.” Specifically, the committee found that Burris made sworn statements to the Illinois House of Representatives that were “inconsistent, incomplete, and misleading.” The letter also stated that Burris’ “shifting explanations” about the sworn statements “appear less than candid.” Finally, the letter said that Burris had a telephone conversation with Blagojevich’s brother that was “inappropriate in its content and implications.”

Reactions to this letter have been difficult to reconcile. Burris himself said he was “pleased” and issued a news release titled “Senate Ethics Committee Clears Senator Roland W. Burris of Legal Wrongdoing” and cited the language in the committee’s letter that it did not find evidence supporting “any actionable violations of law.” On the other hand, his fellow Senator from Illinois, Dick Durbin (D), said the committee found that Burris’ actions had “brought discredit on him and the Senate.”

So what is the significance of a “letter of qualified admonition”? The answer is that no one really knows. At a minimum, it does seem safe to say that a letter of qualified admonition is somehow less serious than a letter that has not been “qualified.” Last year, the committee issued a letter of qualified admonition to then-Sen. Pete Domenici (R-N.M.) for creating “an appearance of impropriety that reflected unfavorably on the Senate.” By comparison, it issued a “letter of admonition” to then-Sen. Larry Craig (R-Idaho) for “improper conduct reflecting discreditably on the Senate.” It is not clear that any real consequences flowed from its decision to use the word “qualified” in one letter but not in the other.

Perhaps no case better captures the inherent ambiguity of ethics rebukes than that of former Sen. Herman Talmadge (D-Ga.), who in 1979 faced a committee investigation for financial irregularities, including excessive reimbursements taken from his office account. The committee ultimately found four violations and recommended that the Senate formally discipline Talmadge.

While some Senators supported resolutions using the terms “censure” or “condemn,” Talmadge himself argued that the committee should “reprimand” him. The committee rejected all of these alternatives and chose instead the word “denounce.” The reason the committee gave for using the word “denounce”? Essentially, it was just to be different. The committee explained that its purpose was to distinguish Talmadge’s case “from those earlier matters in which the Senate ‘censured’ or ‘condemned’ a Member” so that the committee could articulate “its judgments and recommendations … with words that do not depend on analogy to dissimilar historical circumstances for interpretation.”

This begged the obvious question. Ethics Chairman Howell Heflin (D-Ala.) tried to explain: “Some people … felt that the word ‘denouncement’ was weaker than the word ‘censure’ … Some, on the other hand, felt that it was stronger … I think it us up to each individual to give whatever meaning and connotation he may wish.” Talmadge took Heflin up on his offer. He called the committee’s action a “personal victory.” Sound familiar?

© Copyright 2009, 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.