A Question of Ethics

What's the Deal With Job Offers to Candidates?

June 22, 2010

Q: I have a question about job offers to induce candidates to exit a political race. Stories about these offers seem to have been in the news a lot lately, but I have seen no clear answer as to whether they are permissible. Some have suggested that it violates the law to offer someone a federal job in exchange for his or her withdrawing from a political race. Others have disagreed. Are these kinds of deals illegal?

A: The last few months have seen several stories of jobs being offered to political candidates to entice them to drop out of races.

First there was Rep. Joe Sestak, who was allegedly offered a job by the White House in exchange for dropping his challenge to Sen. Arlen Specter in the Pennsylvania Democratic Senate primary, which Sestak ultimately won. In a February interview with Philadelphia television news anchor Larry Kane, Sestak answered yes when asked whether he was “offered a political job to get out of this race.” He also replied yes when asked whether the offer was “by the White House.”

In late May, White House Counsel Bob Bauer released a memorandum responding to the allegations. The memorandum acknowledged that there had been discussions with Sestak regarding unpaid positions on certain White House advisory boards.

White House Chief of Staff Rahm Emanuel, it said, had enlisted former President Bill Clinton to discuss the positions with Sestak. The memorandum explained that there was no impropriety, however, because Democratic leadership had a “legitimate interest in averting a divisive primary fight and a similarly legitimate concern about the Congressman vacating his seat in the House.” According to the memorandum, the positions discussed with Sestak would not have required him to leave the House.

Next there was Colorado state Speaker Andrew Romanoff. Last year the White House allegedly dangled several federal jobs in front of Romanoff to persuade him to drop out of his Democratic primary race against Sen. Michael Bennet. According to Romanoff, in September 2009 White House Deputy Chief of Staff Jim Messina called Romanoff and told him that the White House would support Bennet and mentioned three positions that “might be available” to Romanoff if he were to drop out of the primary. Romanoff later told Messina that he intended to remain in the race.

The White House released a slightly different account of events, but the accounts are consistent in that they both say the White House never promised Romanoff a job.

So, are these types of deals illegal? The most discussed charge has been bribery, which federal law defines, roughly, as providing something of value to a federal official with the intent to influence an official act. For a bribery charge, there must be a quid, a thing of “value,” and a quo, an “official act.” The act of dropping out of a primary, however, does not appear to qualify as either. Indeed, no federal court has ever held that it does. Moreover, bribery charges are notoriously difficult to prove — so difficult, in fact, that federal prosecutors rarely try.

Several other statutes in the U.S. Code have also received attention. For example, 18 U.S.C. 600 prohibits the promise of employment as a reward for any “political activity … in connection with any primary election.” 18 U.S.C. 211 prohibits soliciting a thing “of value” in exchange for the “use of influence in obtaining for any person any appointive office.” And, 18 U.S.C. 595 prohibits administration employees from using their authority for the purpose of “interfering with, or affecting, the nomination or the election of any candidate.”

Again, however, no court has ever applied any of these statutes to circumstances remotely like Sestak’s or Romanoff’s. Moreover, many pundits have observed that this type of political horse-trading is routine.

Yet, there is one more issue to consider: state laws. While there is no federal precedent for criminalizing inducements to stay out of a primary election, there is some precedent at the state level. In 1978, New York state legislator Alan Hochberg was convicted of several state crimes after he promised Charles Rosen a job in the legislature if Rosen agreed not to run against Hochberg in the primary. A New York state appeals court upheld the convictions, holding that Rosen’s agreement not to run in the primary was a sufficiently direct benefit to Hochberg to qualify as a “thing of personal advantage” under New York law.

But, even there, what was critical to Hochberg’s conviction was the fact that Hochberg himself was in the primary, so he stood to benefit directly from Rosen’s agreement not to run. By contrast, in the stories regarding Sestak and Romanoff, there has been no suggestion that their primary opponents were involved in any way.

To return to your question, then, is it legal to use a job offer to entice a candidate to exit a political race? Hochberg’s conviction proves that the answer is not always yes. But, Hochberg’s was an egregious case. In the more run-of-the-mill cases of political horse-trading, I would not bet on anyone going to jail.

© Copyright 2010, 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

Are Proceedings Before the OCE Confidential?

June 8, 2010

Q: I am the president of a D.C. lobbying firm, and I have a question about the confidentiality of proceedings before the Office of Congressional Ethics. We anticipate that our firm may receive a request for documents from the OCE for an investigation it is conducting relating to certain Members of the House. We would certainly like to cooperate with the investigation, but we are concerned about whether information that we provide to the OCE might be made public or provided to other government officials. Must the OCE keep confidential information it receives during investigations?

A: This is a more complicated question than it might seem. The short answer is that the OCE is required to keep your information confidential during an investigation but that there is no guarantee that the information will not eventually become public or even wind up in the hands of other government officials. To understand why requires a review of the basic duties and authority of the OCE. So, let’s start at the beginning.

On March 11, 2008, the House passed H.R. 895 to establish the Office of Congressional Ethics. The resolution states that the purpose of the OCE is to assist “the House in carrying out its responsibilities under article I, section 5, clause 2 of the Constitution (commonly referred to as the ‘Discipline Clause’).”

To that end, the resolution provides for the OCE’s review of allegations of misconduct by Members and staffers to determine whether further review is warranted by the Committee on Standards of Official Conduct, commonly known as the House ethics committee. During its investigations, the OCE may issue requests for information but cannot force anyone to comply with its requests.

To facilitate the OCE’s review of allegations, and perhaps to encourage compliance with information requests, the resolution provides that information provided to the OCE must remain confidential. The resolution includes several provisions regarding confidentiality. For example: “No testimony received or any other information obtained as a member of the board of staff of the Office shall be publicly disclosed by any such individual to any person or entity outside the Office.”

The resolution also requires the OCE to establish procedures necessary to prevent the disclosure of information received by the office and mandates that all OCE employees execute an oath affirming that they will not disclose any information received during their employment.

Thus, on the face of the resolution, it appears that information submitted to the OCE during an investigation should be kept confidential. However, depending on the ultimate outcome of an investigation by the OCE, the confidentiality may only last so long. The OCE’s procedures provide that in certain circumstances the office must publish reports and findings relating to its investigations. These reports and findings are often very detailed, and they attach evidence obtained during the investigation. Therefore, if you provide information to the OCE, there is a risk that it could become public in a report.

Incidentally, late last month Rep. Marcia Fudge (D-Ohio) introduced a bill that would limit the circumstances in which the OCE’s reports would become public and would permit the House ethics committee to direct the OCE to seal records relating to any matter that the panel concludes is frivolous or unfounded. For the time being, however, this bill is not law. Moreover, even if it were to become law, there would still be circumstances under which information submitted to the OCE could wind up in a public report.

You also asked whether information you submit to the OCE could reach government officials. To a certain degree, the answer to the first question also answers the second. After all, any information that the OCE publishes in a report will be available to inspection by anyone, including government officials.

Moreover, even material that the OCE does not publish in a report could still reach government officials. Last month, the OCE announced that it was referring to the Department of Justice “certain evidence collected in the course of its investigation concerning appropriations earmarks and the now defunct PMA lobbing firm.” This came after the House ethics committee declined further action on two matters that the OCE had referred to it.

The OCE’s announcement has not gone without criticism. For example, D.C. attorney Mike Stern, who blogs regarding Congressional legal issues, has questioned whether the OCE has the authority to refer evidence to the DOJ.

The House resolution establishing the OCE includes no provision explicitly authorizing the OCE to refer evidence to the DOJ. Moreover, House ethics committee procedures already allow that panel to make referrals to the DOJ on a vote by two-thirds of the committee. It would seem odd that where the ethics committee rejects that alternative and opts instead to dismiss a matter the Office of Congressional Ethics can still refer the same matter to the DOJ.

But this is all beside the point. To answer your question about whether your information might reach government officials, it is of no moment whether the OCE has the authority to refer such information to such officials. All that matters it that the OCE might actually do so. As things currently stand, that seems beyond doubt.

© Copyright 2010, 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.