A Question of Ethics

Senators: Take Care When Helping Contributors

January 31, 2012

Reprinted from Roll Call (January 31, 2012)

Q: I am chief of staff for a Senator, and I have a question about providing services to our constituents. Our office constantly receives requests from constituents to help with matters pending before federal agencies, often from campaign contributors. Sometimes it makes me uneasy to help contributors. It almost feels like bribery to use our office’s influence on behalf of people who have given money to our Senator’s campaign. On the other hand, constituent services is an important part of a Senator’s job, and it would seem arbitrary, or even political suicide, to refuse to provide services for some constituents merely because they happen to have contributed to our Senator’s campaign. Is it OK to do favors for campaign contributors?

A: Yes, it is OK to provide services to contributors. In fact, the Senate Ethics Manual encourages it. It calls assisting constituents before government agencies “an important function of congressional oversight” and says specifically that providing constituent services to contributors is “a legitimate and appropriate senatorial function.”

Senate Rule 43 confirms this. Adopted in 1992 in the aftermath of the Keating Five S&L scandal, it affirms that “a Member of the Senate, acting directly or through employees, has the right to assist petitioners before executive and independent government officials and agencies.” Under the rule, that assistance might include requesting a status report, urging prompt consideration, arranging for interviews or appointments, expressing judgments or even calling for reconsideration of an administrative response with which the Senator disagrees.

However, as the Senate Ethics Committee has acknowledged, things are a little more complicated when requests for help come from contributors. “Special issues of ethics and propriety are raised when Members intervene … on behalf of a … contributor to … or fundraiser for their campaigns or other causes,” the Senate Ethics Manual says. Because a Senator must rely on numerous individuals and organizations to contribute to their campaigns, it is likely that at some point some of those individuals will seek assistance from the Senator. If a contributor has a matter that a Senator “reasonably believes he or she is obliged to press because it is in the public interest or the cause of justice or equity to do so, then the Senator’s obligation is to pursue” it.

The key is that Senators should try to treat contributors and noncontributors essentially the same. This follows from what the Senate Ethics Committee has called the “cardinal principle” in this area: The decision about whether to intervene for an individual should be made “without regard to whether the individual has contributed, or promised to contribute.” Senate Rule 43 codifies this principle. It prohibits basing the decision to assist a constituent on whether the constituent has contributed to a Senator’s campaign or causes. Given the frequency with which Senate offices receive requests for assistance, all Senate offices should be mindful of this rule.

Moreover, beyond the actual substance of the decision to help a constituent, there is also the issue of appearances. The Senate Ethics manual is full of reminders that appearances matter. The general concern is that the public’s respect for the law might decline if there is the perception that the governmental process reflects the desires of special interests rather than the public good.

The Ethics Manual provides guidance regarding how to minimize this concern when handling requests for assistance from contributors. It says that several factors warrant attention. First, there is the merit of the individual’s request. Second, there is the amount of the contribution or contributions the individual has made or raised, including whether the amount is more than the average contribution. Third, there is the history of the individual’s donations, including whether the individual has made donations in the past. Next, there is the nature of the individual’s request, including whether it would require the Senator to take an action that would deviate from normal conduct. And, finally, there is the proximity of time between an individual’s contribution and the request for assistance.

None of these factors is controlling or by itself requires or prohibits a particular course of action. In fact, the Ethics Manual makes a point of saying that, when fielding requests for help from contributors, the Ethics Committee does not endorse or require any particular procedure as it “does not seek to elevate form over substance.”

So, by all means, continue to help your constituents — contributors and noncontributors alike. I am no expert in fundraising, but I suspect that a sure way to see a drop in campaign funds is to implement a policy against helping contributors. The good news is that nothing in the ethics rules requires you to stop helping contributors. Just remember to take care while you are doing it.


A Question of Ethics

William Jefferson's Appeal Could Affect Bribery Law

January 17, 2012

Reprinted from Roll Call (January 17, 2012)

Q: A friend and I have been following former Rep. William Jefferson’s (D-La.) appeal of his conviction for bribery. Over the holidays, I read that the appeal could significantly impact federal law regarding bribery. Can you help me understand what is at stake in Jefferson’s appeal?

A: Say you are a toothbrush manufacturer and you go to your local Congressman and offer him $10,000 to vote for legislation promoting the use of toothbrushes. You would be guilty of bribery under federal law.

Say, instead, that you go to your local Congressman and offer him $10,000 to brush his own teeth. You would not be guilty of bribery.

What’s the difference? The answer lies in the definition of bribery, which is at the heart of one of Jefferson’s main challenges to his conviction. But first, some context.

In November 2009, Jefferson was convicted of multiple felonies resulting from allegedly accepting bribes while a Member of Congress for performing constituent services, including helping several companies do business in the United States and West Africa. The charges are primarily based on violations of the federal bribery statute and a law prohibiting what is known as “honest-services wire fraud.” Jefferson’s challenges to his honest-service wire fraud alone are enough fodder for a column. Your question concerns bribery, so let’s focus on that.

To convict a public official under the federal bribery statute, the government must prove that the official solicited or accepted something of value in return for “being influenced in the performance of any official act.” At issue in Jefferson’s appeal is what counts as an official act. Voting on toothbrush legislation is an official act. Brushing one’s teeth is not.

Jefferson contends that his trial judge improperly instructed the jury regarding the definition of an official act and that resulted in his conviction. The judge first told the jury the statutory definition of an official act — any decision or action on any matter that may be pending or brought before a public official in his official capacity. Then, at the government’s urging and over Jefferson’s objection, the judge told the jury that official acts include activities “clearly established by settled practice as part of a public official’s position.”

Jefferson argues that this instruction was erroneous because it would make the bribery statute unconstitutionally vague. Jefferson particularly focuses on the phrase “settled practice.” What does it mean for a practice to be settled for a Member of Congress, he asks? That a majority of Members do it? That one or two Members do? How often? And can a practice that was once settled become unsettled? Jefferson argues that if an “official act” were to include anything that could be construed as a “settled practice,” officials would not have sufficient notice of conduct prohibited by the bribery statute.

The government makes several points in response. First, the government says, the judge did not use the term “settled practice” as a substitute for the statutory definition of “official act.” Rather, after reciting that definition twice to the jury, the judge merely went on to clarify that an act may be official even if it is not part of a responsibility explicitly assigned by law but instead clearly established as part of an official’s position by settled practice.

Second, the government says, the term “settled practice” is everyday speech, and an official could therefore easily understand what actions could be “clearly established.” Indeed, the term appears in many U.S. Supreme Court decisions.

Third, the government argues, Jefferson himself is in no position to challenge the clarity of the “settled practice” instruction because Jefferson himself clearly knew that he was illegally performing official acts in exchange for bribes. In other words, even if the term “settled practice” creates vague borders, Jefferson’s actions were nowhere near those borders.

For example, the government says, Jefferson issued a Congressional inquiry to the Army for the benefit of a company that was bribing him; promoted the company’s product to a committee chairman, who wrote on Congressional letterhead endorsing the product; and led an official delegation to Nigeria, where he lobbied officials for the benefit of the company.

These acts, the government says, are all indisputably official acts. For the travel to Nigeria, the government notes, Jefferson filed forms with the House certifying that his travel was in connection with his official duties. In sum, the government says, Jefferson “consistently deployed all the trappings of his Congressional office,” including access to staff members, embassy limos and House stationery, to ensure that the constituents who bribed him received the influence they were purchasing.

So, what to make of this? Jefferson’s appeal is now in the hands of the Fourth Circuit Court of Appeals, which heard oral arguments in December. Unfortunately for Jefferson, even if the Fourth Circuit were to find compelling Jefferson’s argument about the vagueness of “settled practice,” this would not necessarily make Jefferson a free man or even get him a new trial. Jefferson was convicted on 11 counts, each with slightly different factual or legal bases. If the court upholds convictions on just one of the counts, Jefferson would remain imprisoned for many years. Only a home run — a complete reversal of all convictions — would set Jefferson free.

Nonetheless, you are right that the court’s decision could be significant to federal bribery law. Political law attorneys will certainly be watching closely. And perhaps some public officials will be, too.

© Copyright 2011, 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.