Q. I have a question about the recent news of an audio recording of Senate Minority Leader Mitch McConnell. I know that there has been a great deal of focus on the legality of the recording and it being leaked. But, I have now also seen some news about allegations against McConnell, himself, arising out of the recording. Is there any merit to the charges against McConnell?
A. Earlier this month, news broke of a twelve-minute audio recording of a Feb. 2 campaign meeting Sen. Mitch McConnell attended at his campaign office in Kentucky. That recording has drawn a great deal of media attention, focused largely on whether the recording was surreptitiously obtained and whether the meeting might even have been bugged. McConnell’s campaign has worked with the FBI and other federal officials in an investigation into the circumstances of the recording.
A side story that has grown out of the release of the recording is the filing of an ethics complaint based on its contents against McConnell himself. In an April 11 letter to the Senate Ethics Committee requesting an investigation, Citizens for Responsibility and Ethics in Washington alleges the audio recording reveals McConnell may have violated Senate rules by using Senate staff or resources to conduct campaign work. CREW sent a similar letter to the FBI. This is because it is not just a violation of Senate ethics rules to misuse Senate resources, but it can be a crime, as well, with serious consequences.
What does CREW allege McConnell did wrong? CREW’s letter to the Ethics Committee states that McConnell met with aides to discuss “research some of them had conducted about potential campaign opponents of Sen. McConnell.” Indeed, much of the audio recording contains discussion of the results of such research, some of which CREW alleges was conducted by Senate staffers.
What’s wrong with this? CREW cites a federal law requiring that “appropriations shall be applied only to the objects for which the appropriations were made.” In lay terms, this essentially means that official federal resources should be used only for official federal purposes.
The Senate Ethics Committee has issued guidance in the past on what this means for Senate staffers who wish to do campaign work. Specifically, because Senate staffers receive publicly funded salaries, the Senate Ethics Manual states, “campaign and other non- official activities should not take place on Senate time, using Senate equipment or facilities.” As the manual states: “Senate employees are compensated from funds of the Treasury for regular performance of official duties. They are not paid to do campaign work.”
On the other hand, no rules prohibit Senate staffers from doing campaign work in their free time. Like any other citizens, Senate staffers are free to work on campaigns in their spare time. The Senate Ethics Manual makes this explicit: “Senate employees are free to engage in campaign activities on their own time, as volunteers or for pay, provided they do not do so in congressional offices or otherwise use official resources.”
At issue, then, is whether any of the campaign research discussed on the McConnell audio recording was done by Senate staffers on official Senate time. CREW’s letter cites a purported excerpt from the beginning of the transcript in which a voice is heard to say that the discussion to follow “reflects the work of a lot of folks, Josh, Jesse, Phil Maxson, a lot of LAs, thank them three times, so this is a compilation of work, all the way through.” LAs likely means “legislative aides,” a Senate staff position — and CREW notes that some of the named individuals may be staffers, as well. If staffers did campaign work on Senate time, this indeed could present an issue.
However, the McConnell campaign has stated that the whole complaint is premised on an inaccurate transcription of what was actually said at the meeting. Most significantly, the campaign says, the speaker at the outset of the discussion did not say “thank them three times” for their work, but rather that the work was done “in their free time.” If the staffers did indeed do the campaign research in their free time, of course, then the law CREW cites would not be at issue.
I’ll leave it to the audio experts to determine who is right about the recording. Whatever it says, the incident is a useful reminder that staffers should be careful not to do campaign work on official Senate time or using official resources. A violation, or even the appearance of one, can lead to trouble.
C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to firstname.lastname@example.org. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.
Rep. Eric Swalwell, D-Calif., walks on Broadway after a Future Forum with young entrepreneurs in the Flatiron District of New York City, April 16, 2015. Reps. Steve Israel, D-N.Y., Seth Moulton, D-Mass., and Grace Meng, D-N.Y., also attended.