The House Ethics Committee said last week that it knows a rules violation when it sees one, but it can’t specify what one looks like.
But ethics observers are split over whether that decree — issued when the Ethics panel declined to pursue allegations that three lawmakers’ fundraising events may have violated the chamber’s rules — weakens existing standards meant to keep lawmakers from granting donors special access, or at least the appearance of it.
“It makes it very difficult for Members to go forward if they’re not going to have a standard,” said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington. “Bright lines are really helpful in making sure people follow rules.”
In its ruling last week, the Ethics Committee rejected a recommendation from the Office of Congressional Ethics that the panel investigate 2009 fundraising events held by Reps. Joe Crowley (D-N.Y.), John Campbell (R-Calif.) and Tom Price (R-Ga.). The events raised money from financial industry lobbyists while Congress was considering a major financial industry overhaul.
The OCE compared the events to a fundraiser sponsored by then-Rep. Tom DeLay (R-Texas) in 2002.
The Ethics Committee admonished Delay for that event in 2004, asserting that the lawmaker’s actions had created an “appearance” of special access for energy company executives at the event.
But in its report last week, the committee contended that its ruling against DeLay did not establish any black-and-white standard for Members to rely on.
“The Committee’s considerations in the DeLay matter are best viewed as a general guideline of some potential factors to be mindful of when assessing whether a Member’s actions may potentially create the appearance of improper conduct in fundraising activities,” the Ethics report states. “Each matter, however, must ultimately be judged on a case-by-case basis under the specific circumstances presented.”
Sloan argued the committee’s exacting comparison undercut its earlier ruling.
“They really seem to have weakened what they wrote in DeLay seven years ago,” Sloan said. “Congress is so dependent on their donors that they are willing to overlook even clear appearance problems. Something that was unacceptable just a few short years ago is now acceptable.”
But attorney Elliot Berke, who regularly represents Members before the Ethics panels and served as general counsel to the Office of the Majority Leader under DeLay, said last week’s decision improved upon the earlier ruling.
“It’s great that the committee has finally offered more clarity on this issue, but it needs to do more to explain to Members where the lines are,” Berke said. “This new standard amounts to a ‘totality of the circumstances’ analysis, which allows for flexibility but also for potential pitfalls.”
In its report last week, the Ethics panel found the trio of lawmakers had avoided an ethics violation in large part because each retained a private fundraising consultant, allowing them to claim there was a clear separation between official activities and campaign fundraising.
Rob Walker, an attorney at Wiley Rein and former staff director of both the House and Senate Ethics panels, argued that it was the OCE’s own investigation that created confusion over the timing and focus of campaign fundraisers.
“I think the committee’s action here will clarify a situation that has been very much in limbo since these OCE inquiries began,” said Walker, who praised the committee’s decision to dismiss the cases last week.
“The committee has not abandoned what it said in the DeLay matter, but what it did say here is that not every occurrence of raising funds from individuals or entities who may have interests in legislation ... is a violation,” Walker said. “That was open to some question under the OCE view of things.”
Senate Minority Leader Mitch McConnell, R-Ky., carries a musket on stage as he speaks during the American Conservative Union's Conservative Political Action Conference (CPAC) at National Harbor, Md., on Thursday March 6, 2014.