Embattled GOP Rep. Duke Cunningham’s decision last week to retire at the end of the 109th Congress has set off both a crowded race to replace him in California and a debate among legal experts over whether lawmakers under investigation are better served staying in office or leaving to mount their defenses as private citizens.
Cunningham made his retirement announcement at a news conference in his district on Thursday, amid a rapidly progressing federal probe into whether he had an improper professional and financial relationship with defense contractor Mitchell Wade of the firm MZM Inc.
Cunningham informed Speaker Dennis Hastert (R-Ill.) of his decision to retire earlier last week but does not appear to have informed other GOP leaders or many other members of the California delegation before his public announcement.
“It was entirely Cunningham’s choice,” said a senior GOP leadership aide. “He was not pressured by leadership. Nobody in leadership advised him into doing this.”
The fact that Cunningham was not pressured into retiring doesn’t mean the leadership isn’t happy with his decision. Before Thursday’s announcement Republican leaders and aides had begun privately confiding that they thought it would be best if the Californian resigned or retired before the situation worsened.
For now, Cunningham will retain his positions within the House. He will remain a member of the Appropriations and Select Intelligence committees and will not have to give up his security clearance unless an indictment somehow makes it necessary that he do so.
As for whether Cunningham made the right move from a legal standpoint, experts mostly agreed that his decision was a good one.
“I always look at the Coelho model,” said defense attorney and ex-prosecutor Joe diGenova, referring to former Rep. Tony Coelho (D-Calif.). “The Coelho model is, you always get out of town ahead of the posse.”
Coelho resigned from the House in May 1989 amid questions over whether he had acted improperly in obtaining a loan and insider information for a junk bond deal. The Justice Department closed its probe of Coelho without taking action against him and he also never faced ethics charges in the House.
“That is the model,” diGenova said. “That’s the only model. As long as you’re hanging around [in office] you’re low-hanging fruit” for prosecutors.
Kenneth Gross, a defense attorney with Skadden, Arps, Slate, Meagher and Flom, pointed to ex-Rep. Dan Rostenkowski (D-Ill.) as someone who may have stayed in office too long for his own good.
Rostenkowski chose to stay in office following the House Post Office scandal. He was defeated for re-election in 1994 and eventually served time in jail after pleading guilty to mail fraud.
“I think that had the effect of sort of fueling the investigation,” Gross said. “When a Member resigns it takes part of the steam out of the case.”
On the other hand, a sitting lawmaker would likely have a better ability to raise money to defend himself than a private citizen would. As of Friday, Cunningham had not yet filed paperwork to establish a legal defense fund. But that option remains open to him, and the fact that he will stay in office on key House committees for another 18 months could help him rake in money for his defense.
“Personally I don’t think a Member’s status is going to affect a prosecutor or a jury,” said Jan Baran, an attorney at Wiley Rein and Fielding. “The only difference I see is that retired members will have less money to defend themselves unless they have a large campaign surplus. Otherwise they will no longer be able to raise money either for a campaign or for a legal defense fund. This is where being a lame duck really hurts.”
Norman Ornstein, a Congressional expert at the American Enterprise Institute, agreed that a sitting Member has some real financial advantages.
“It’s fairly clear that we’re in a serious criminal investigation,” said Ornstein, who is also a Roll Call contributing writer. “The question becomes, where can you muster the resources to do this [defense]?”
But Ornstein also agreed with diGenova and other experts that embattled Members should not stay so long that they encourage a more zealous investigation.
Given the potential legal advantages of leaving office, Ornstein said it was striking that more embattled lawmakers don’t decide to quit before the fire gets too hot.
“The instinct is always to believe that you can tough this out,” he said.
On the campaign front, meanwhile, the race to replace Cunningham in the northern San Diego County 50th district is already well under way.
Four Republicans seem all but certain to join the fray, and several others — including former Rep. Brian Bilbray (R-Calif.) — could follow. And Democrats argue that they now have a strong chance to capture the seat, despite its decided Republican lean.
“Everyone knew that regardless of how and when Duke Cunningham left his seat, it would be quite a show to see who would replace him,” said T.J. Zane, a San Diego-based GOP consultant.
Within hours after Cunningham’s retirement announcement, three prominent Republicans — state Sen. Bill Morrow, former state Assemblyman Howard Kaloogian and San Diego County Supervisor Pam Slater-Price, signaled their intention to run. Businessman George Schwartzman had already announced a challenge to Cunningham in next June’s Republican primary.
Kaloogian, a leader in the successful effort to recall then-California Gov. Gray Davis (D) in 2003, issued a statement Friday from Iraq announcing that he would definitely be a candidate. Kaloogian, who heads a non-profit group that was organized to support U.S. troops called Moving America Forward, commands the loyalty of several grassroots conservatives around the state, which could help him, especially in a large primary field.
But Morrow is also a well-known and well-respected conservative. He was runner-up to now-Rep. Darrell Issa (R-Calif.) in the 2000 primary in an adjoining district.
Slater-Price and Schwartzman are considered more moderate; Slater-Price is a well-known veteran officeholder, while Schwartzman, who owns a medical records business, has promised to spend liberally to become a viable candidate.
But the size of the Republican field could grow exponentially in the next several days, with several well-known names mentioned as possible contenders.
Bilbray, who was defeated by now-Rep. Susan Davis (D-Calif.) in a southern San Diego County district in 2000, recently moved to Carlsbad in the 50th — a move unrelated to politics, according to GOP sources. Bilbray, who served three terms in Washington before his defeat, could not be reached for comment Friday.
Other Republicans said to be looking at the race: Escondido Mayor Lori Holt Pfeiler; ex-San Diego Mayor Susan Golding; Robert Hertzka, former president of the California Medical Association and husband of a former San Diego County GOP chairwoman; San Diego County Supervisor Bill Horn; San Diego City Councilman Brian Maienschein; San Diego County Treasurer Dan McCallister; state Assemblyman George Plescia; state Sen. Mark Wyland, and California Division of Consumer Affairs Director Charlene Zettel, who is a former state assemblywoman.
“I wouldn’t be surprised if there are at least 15 candidates who fill the ballot,” Zane said.
On the Democratic side, national party leaders are growing increasingly enthusiastic about Francine Busby, a college lecturer who was the 2004 nominee against Cunningham.
Busby finished 21 points behind Cunningham last year, but her campaign was badly underfunded, and she spent little more than $200,000.
But Busby has seen a fundraising surge in the past few weeks, pulling in more than $100,000 since news of Cunningham’s ethical troubles surfaced. Party leaders — and even some grudging Republican operatives — praise her grassroots operation.
“We’re very excited about Busby,” said Adrienne Elrod, a spokeswoman for the Democratic Congressional Campaign Committee.
Still, the district favors the GOP, having given President Bush 55 percent of the vote in the 2004 White House election.
“The registration advantage clearly benefits Republicans, barring some unforeseen circumstance,” said Doug Farry, executive director of TechNet, a high tech organization in Southern California, and a former top aide to then-House Majority Leader Dick Armey (R-Texas).