Earmark Rejection Spurs Ethics Complaint

Posted April 16, 2010 at 5:37pm

Entrepreneur Paul Asmus didn’t get an earmark. And he thinks that’s unethical.

So earlier this month, Asmus wrote to the Office of Congressional Ethics, calling for an investigation into the rejection of his request for $10 million in federal funds.

Individuals knowledgeable with the House Appropriations panel and the ethics process said that Asmus’ complaint is unique and could be the first time an individual has sought such a remedy after being rejected for an earmark.

“Typically if you fail to convince an office of the worthiness of your project, you go back to the drawing board, you don’t file an ethics complaint,” said a former House Appropriations aide who is now a lobbyist, and who asked not to be identified.

In his complaint to OCE — a 38-page document Asmus provided to Roll Call that includes e-mails, letters of support for his company, and public records — the California businessman alleges Appropriations Subcommittee on Defense Chairman Norm Dicks (D-Wash.) violated House rules when his office refused Asmus’ request for funds for his nonprofit organization, Humanitarian Air Logistics.

In particular, Asmus alleges that the lawmaker failed to adhere to the House Ethics Manual, the official interpretation of House rules, which directs Members to give equal consideration to all constituents.

Asmus argues that the office’s rejection of his request based on various factors — such as the company’s status as a startup, despite approving similar earmark requests — suggests that Dicks is “discriminatory in his sponsorship of earmarks.”

Dicks’ chief of staff, George Behan, said Thursday that he had not seen a copy of Asmus’ letter to OCE, but he said he was unaware of any ethics standard relevant to the rejection of the request.

“[Dicks’] judgment is based on going through hearings, markups of Defense appropriations bills … and reviewing the defense priorities in any given year, and reviewing the available budget resources,” Behan said. “He makes judgments on what is in the best interest of the country and what is in the best interest of the 6th Congressional district. This unfortunately was not one of them.”

Moreover, Behan noted that Asmus’ nonprofit entity is not located in Dicks’ district — Asmus lives in California and his business is based in Palo Alto, Calif. — and does not employ any individuals in his district.

In fact, Asmus acknowledged that his earmark request, which he began pursuing in fall 2008, was previously rebuffed by his hometown lawmaker, Rep. Anna Eshoo (D-Calif.), as well as Rep. Kay Granger (R-Texas) by spring 2009.

Around the same time, Asmus said he met with aides to Hawaii’s delegation, but Senate Appropriations Chairman Daniel Inouye (D-Hawaii) ultimately rejected a larger $20 million request by fall 2009.

In summer 2009, Asmus said he contacted Rep. John Murtha (D-Pa.), then-chairman of the House Appropriations Subcommittee on Defense, but the office informed him it was too late for his request.

Following Murtha’s death, Asmus shifted his attentions to Dicks, who became the Defense panel’s chairman.

“If you can get to work with the chair of a committee, that’s a lot better chance of success and makes things go on better than not. It just so happened that I knew him and George [Behan] from over the years,” Asmus said in an interview Thursday.

Asmus previously lived in Washington state and is a one-time Congressional candidate, placing fifth a 1996 open primary contest in the 2nd district.

Behan likewise described Asmus as a frequent visitor to the lawmaker’s offices over the years. “We’ve known Paul for a couple of decades,” Behan said. “He sends a lot of e-mails to a lot of people.”

‘A Unique Complaint’

The OCE, which is tasked with reviewing potential rules violations and recommending investigation to the House ethics committee, acknowledged receiving Asmus’ grievance in an April letter but did not indicate whether it will pursue the matter.

Asmus said he has not otherwise been contacted by the OCE, and the office does not comment on its work or confirm when it has rejected or accepted an allegation.

While the OCE could potentially take a complaint, individuals familiar with the ethics or Appropriations process suggested it would be unlikely simply because Members have significant discretion when it comes to selecting earmarks — including rejecting requests that do not benefit their own districts.

“It may be a unique complaint in that he’s complaining about unequal treatment in connection with an earmark. At least theoretically, there’s no reason why those standards — not providing equal treatment for unfair reasons — there’s no reason why that wouldn’t apply in this kind of situation,” said Rob Walker, an attorney with Wiley Rein who has served as a top aide to both the Senate and House ethics committees.

Walker, who had not seen Asmus’ OCE complaint and emphasized that he was not specifically addressing Asmus’s situation nor commenting on the strength of Asmus’ claim, added: “The decision to support an earmark is discretionary … There may be meritorious requests that simply can’t be fulfilled simply because there is a limited number of requests that can be pursued.”

Dicks’ earmarking process has already survived the OCE’s scrutiny once before, during the office’s investigation of the now-defunct lobbying firm PMA Group.

In that probe, the OCE reviewed whether seven Members had exchanged earmarks for campaign contributions and ultimately closed its inquiry into Dicks in December with a recommendation the investigation be dismissed.

Holding Pattern

In the event OCE accepts his complaint, Asmus acknowledges he can’t simply demand an earmark.

Instead, he wants the OCE to dig up a definition outlining the “minimum standard” for an earmark and said he hopes to reapply using that information.

“I didn’t even know how the process worked and honestly it’s still not clear,” Asmus said. “It’s still this mysterious unwritten process. It’s like only insiders know.”

Although Asmus has helmed a variety of small businesses — ranging from a Hawaiian helicopter tour company to Geneti-Pet, which allowed pet owners to cryogenically store samples of their pets’ blood — he said this is the first company that he has sought earmarked funds to operate.

In the meantime, Asmus said his nonprofit air cargo service for humanitarian missions is unlikely to thrive without an infusion of federal tax dollars.

“I feel that this project, I don’t believe [it] will be very successful without Congressional support because our primary customer is the U.S. government. I never ever anticipated this kind of problem or resistance or indifference,” he said.