Senators: Take Care When Helping Contributors
Q: I am chief of staff for a Senator, and I have a question about providing services to our constituents. Our office constantly receives requests from constituents to help with matters pending before federal agencies, often from campaign contributors. Sometimes it makes me uneasy to help contributors. It almost feels like bribery to use our office’s influence on behalf of people who have given money to our Senator’s campaign. On the other hand, constituent services is an important part of a Senator’s job, and it would seem arbitrary, or even political suicide, to refuse to provide services for some constituents merely because they happen to have contributed to our Senator’s campaign. Is it OK to do favors for campaign contributors?
A: Yes, it is OK to provide services to contributors. In fact, the Senate Ethics Manual encourages it. It calls assisting constituents before government agencies “an important function of congressional oversight” and says specifically that providing constituent services to contributors is “a legitimate and appropriate senatorial function.”
Senate Rule 43 confirms this. Adopted in 1992 in the aftermath of the Keating Five S&L scandal, it affirms that “a Member of the Senate, acting directly or through employees, has the right to assist petitioners before executive and independent government officials and agencies.” Under the rule, that assistance might include requesting a status report, urging prompt consideration, arranging for interviews or appointments, expressing judgments or even calling for reconsideration of an administrative response with which the Senator disagrees.
However, as the Senate Ethics Committee has acknowledged, things are a little more complicated when requests for help come from contributors. “Special issues of ethics and propriety are raised when Members intervene … on behalf of a … contributor to … or fundraiser for their campaigns or other causes,” the Senate Ethics Manual says. Because a Senator must rely on numerous individuals and organizations to contribute to their campaigns, it is likely that at some point some of those individuals will seek assistance from the Senator. If a contributor has a matter that a Senator “reasonably believes he or she is obliged to press because it is in the public interest or the cause of justice or equity to do so, then the Senator’s obligation is to pursue” it.
The key is that Senators should try to treat contributors and noncontributors essentially the same. This follows from what the Senate Ethics Committee has called the “cardinal principle” in this area: The decision about whether to intervene for an individual should be made “without regard to whether the individual has contributed, or promised to contribute.” Senate Rule 43 codifies this principle. It prohibits basing the decision to assist a constituent on whether the constituent has contributed to a Senator’s campaign or causes. Given the frequency with which Senate offices receive requests for assistance, all Senate offices should be mindful of this rule.
Moreover, beyond the actual substance of the decision to help a constituent, there is also the issue of appearances. The Senate Ethics manual is full of reminders that appearances matter. The general concern is that the public’s respect for the law might decline if there is the perception that the governmental process reflects the desires of special interests rather than the public good.
The Ethics Manual provides guidance regarding how to minimize this concern when handling requests for assistance from contributors. It says that several factors warrant attention. First, there is the merit of the individual’s request. Second, there is the amount of the contribution or contributions the individual has made or raised, including whether the amount is more than the average contribution. Third, there is the history of the individual’s donations, including whether the individual has made donations in the past. Next, there is the nature of the individual’s request, including whether it would require the Senator to take an action that would deviate from normal conduct. And, finally, there is the proximity of time between an individual’s contribution and the request for assistance.
None of these factors is controlling or by itself requires or prohibits a particular course of action. In fact, the Ethics Manual makes a point of saying that, when fielding requests for help from contributors, the Ethics Committee does not endorse or require any particular procedure as it “does not seek to elevate form over substance.”
So, by all means, continue to help your constituents — contributors and noncontributors alike. I am no expert in fundraising, but I suspect that a sure way to see a drop in campaign funds is to implement a policy against helping contributors. The good news is that nothing in the ethics rules requires you to stop helping contributors. Just remember to take care while you are doing it.
C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.