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Murky Standards for Ethics Cases

Bill Clark/CQ Roll Call File Photo
The cases against Reps. Shelley Berkley (above) and Maxine Waters have drawn parallels to a 2009 ethics investigation involving Rep. Sam Graves.

Two of the House Ethics Committee’s current investigations focus on whether current Members used their office for personal financial gain.

The chain of events leading to the probes of Democratic Reps. Shelley Berkley (Nev.) and Maxine Waters (Calif.) are straightforward and factually similar: Both lawmakers urged outside entities to take actions that would, if successful, eventually benefit their spouses financially.

But determining whether the actions were taken primarily for their own benefit or for a larger group will be key to establishing whether any ethics violations occurred.

Legal experts told Roll Call that such cases fall into a gray area of ethics rules that’s filled with opportunities for divergent interpretations because conclusions could hinge on establishing intent.

“I think Representatives are all trying to do the right thing, but there will be some differences of opinion sometimes when it comes to conflicts-of-interest [cases]. It’s an area that’s a little ambiguous and less clear-cut,” said Jan Witold Baran of Wiley Rein.

The committee announced earlier this month that it would form an investigative subcommittee to handle the Berkley case. The independent Office of Congressional Ethics referred the case to the committee after reviewing the seven-term lawmaker’s role in trying to save a kidney transplant program at a hospital where her husband’s medical practice had a lucrative contract and to preserve government reimbursements for dialysis centers, which his practice owns throughout the state.

The Waters case, which the committee is investigating with the help of an outside counsel, focuses on her role in setting up meetings between Treasury Department officials and the National Bankers Association to discuss the financial health of
minority banks. The OCE referred the case after finding that the meeting focused on one bank where Waters’ husband had previously been a board member and in which he had a financial stake.

The cases against both lawmakers rely on the application of House rules, passages in the Code of Ethics for Government Service and guidance in the House Ethics Manual related to conflicts of interest and using a government office for personal financial gain.

Baran said the rules on Congressional conflicts of interest and matters of personal interest are narrowly tailored to encourage participation in the legislative process unless a lawmaker has a direct and specific financial interest.

“The general principle is that the ethics rules discourage finding a conflict of interest because the consequence is so dramatic, it prevents a Member or Representative from participating or voting on legislative matters,” Baran said. “Unlike judges or executive branch personnel, [Members] cannot recuse themselves or give the vote to someone else.”

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