The House ethics committee has announced that it is investigating the links between earmarks and campaign contributions, but if investigators are looking at any activity prior to 2007, they could run into a problem: The documents underlying those earmarks may have been destroyed.
While it is a common business practice to maintain records on legislative activity, House Members are not obligated to maintain documents from their offices. The papers of a Members office are considered the lawmakers personal property and can be disposed of as he or she sees fit.
Committees are required to maintain some records, but according to current and former House staff, prior to 2007, the Appropriations Committee routinely disposed of Member letters requesting earmarks for spending bills.
In 2007, the House adopted new rules requiring that each earmark be identified in the bill with the name of the Member requesting it and that the request letters identifying the recipient be made public as well. But prior to establishment of those rules, earmark sponsors were not identified in the bill, and the panel is unlikely at this point to have any documentation for how individual earmarks got into appropriations bills before 2007, several sources said.
On June 11, the Committee on Standards of Official Conduct announced that it had begun an investigation into certain specified allegations related to a House resolution urging the panel to disclose whether it was investigating earmarks, campaign contributions and the PMA Group lobbying firm.
The PMA Group was raided by the FBI last November; for the past two decades, the firm and its clients have produced millions of dollars worth of earmarks for key members of the Appropriations Committee and have received millions of dollars worth of earmarks.
But request letters for anything prior to 2007 may be difficult to find.
We keep paper copies of the earmark request for about two years, and then we just dont have the space to store it anymore, said Jennifer Hing, spokeswoman for Republicans on the Appropriations Committee. For us its just a matter of logistics.
Jim Specht, spokesman for Rep. Jerry Lewis (R-Calif.) who headed the committee from 2005 until 2007 said, There is no formal policy [for retaining request letters], and there has been none since Ive been here.
House rules require that at the end of each Congress, the committee chairmen must turn over to the Clerk of the House any noncurrent records of such committee, which the Clerk then turns over to the National Archives. But the rules are vague on what records must be included, referring only to any official, permanent record of the House (other than a record of an individual Member). That definition appears to allow for an interpretation that the earmark request letters are records of the Member, not of the House.
The Clerks office told Roll Call that it is up to the committees to decide which documents to hand over for archiving.
Specht said he would be surprised if Members disposed of earmark request information because, presumably, the Members would want to follow up with the relevant agency if the earmark was not implemented properly or if the group seeking the earmark had a complaint after the bill was passed.
For reporters, getting information about earmarks prior to 2007 generally involved asking Members or staff if they knew who had sought a particular provision in a bill. As key staff leave the Hill, they may take with them the only institutional memory about earmarks from a particular bill.
When Roll Call inquired in June about a 2005 earmark requested by Rep. John Murtha (D-Pa.), his office said only that no one there had any recollection of the language.
And Members are not required to maintain paperwork on old earmarks.
For most earmarks prior to 2007, the only public records are press releases or news accounts that were issued at the time, in which the Member claims credit for the earmark. Even those may be unreliable because a Member may publicly claim credit for an earmark that they had no role in obtaining from the Appropriations Committee.
Kyle Anderson, spokesman for the House Administration Committee, said in an
e-mail to Roll Call, There is no official policy or requirement for Members to save documents. The Clerk has advocated for standards and has proposed resources for supporting Members document archiving efforts, but there are no requirements that Members retain documents.
Elliot Berke, former counsel to then- Speaker Dennis Hastert (R-Ill.) and then-Majority Leader Tom DeLay (R-Texas) in their cases before the ethics panel, said Members literally own their own paper and can dispose of documents any way they please.
For the ethics committees pursuit of improprieties involving earmarks, this means that there is no central repository for old earmark request letters and that the only way to get information about an earmark is to ask the office that sponsored it or that is believed to have sponsored it what they recall about it or whether they have documentation that they will share.
The ethics panel also has the authority to subpoena Members or outside groups for documents related to the investigation, though that would likely be a last resort.
Berke said it is hard to imagine a Member refusing to cooperate with an ethics panel request for whatever documents are available, though it is also possible that Members could delay producing the document by placing a variety of nondisclosure requirements on any papers that they do provide.
The other issue that may complicate matters for the ethics panel is the fact that the Justice Department is already investigating PMA. The ethics committee has routinely declined to pursue investigations of matters that are part of an active criminal investigation by the DOJ, and it is not clear where the DOJ investigation and the ethics committee investigation might overlap.