Month: August 2009

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Fourth Edition of The Lobbying Manual

             The Fourth Edition of The Lobbying Manual, the ABA’s guide to the federal law of lobbying, is now available for ordering here.  The Lobbying Manual is an invaluable resource for lawyers and lobbyists who need to keep track of the large and growing body of law that governs federal lobbying.  It is edited by well-known lobbying experts Bill Luneburg of the University of Pittsburgh School of Law, who currently serves as chair of the ABA Administrative Law and Regulatory Practice Section, Tom Susman, who heads the ABA’s government relations department, and Rebecca Gordon of the Perkins Coie law firm.  

            There have been many legal developments in the lobbying field since the last publication of The Lobbying Manual in 2005.  These include a number of important amendments to the Lobbying Disclosure Act, to congressional ethics rules and to federal ethics laws contained in the Honest Leadership and Open Government Act of 2007.  In addition, there have been a number of new rules on lobbying instituted by the Obama Administration through executive order.  Finally, there have been significant criminal law developments involving the prosecution of lobbyists and lobbying-related activities.  It is not surprising, therefore, that the new version of The Lobbying Manual appears to contain numerous revisions and updates, including a number of entirely new chapters.  In addition, it contains a largely new section entitled “The Practice of Federal Lobbying” which seems to be devoted to providing practical as well as legal tips on both executive and congressional lobbying activities.

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Edward Kennedy, RIP

From Riddick’s Senate Procedure 

FLOWERS IN SENATE CHAMBER 

Resolution Adopted by Senate in 1905 

Resolved, That until further orders the Sergeant at Arms is instructed not to permit flowers to be brought into the Senate Chamber. 

On September 15, 1983, the Senate adopted the following resolution on this subject: 

Resolved, That notwithstanding the resolution of the Senate of February 24, 1905, upon the death of a sitting Senator, the majority leader and the minority leader may permit a display of flowers to be placed upon the desk of the deceased Senator on the day set aside for eulogies.

 

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The CIA OIG Report on Enhanced Interrogations and Congressional Briefings

            The May 7, 2004 CIA Inspector General Report on enhanced interrogation techniques (EITs) and related activities, released yesterday, contains the following references to congressional briefings (on pages 23-24 of the report):

 

“In the fall of 2002, the Agency briefed the leadership of the Congressional Intelligence Oversight Committees on the use of both standard techniques and EITs.” 

“In early 2003, CIA officials, at the urging of the General Counsel, continued to inform senior Administration officials and the leadership of the Congressional Oversight Committees of the then-current status of the CTC Program.  The Agency specifically wanted to ensure that these officials and the Committees continued to be aware of and approve CIA’s actions.” 

“Representatives of the DO, in the presence of the Director of Congressional Affairs and the General Counsel, continued to brief the leadership of the Intelligence Oversight Committees on the use of EITs and detentions in February and March 2003.  The General Counsel says that none of the participants expressed any concern about the techniques or the Program.”   (emphasis added) 

“According to OGC, . . . the Intelligence Committee leadership was briefed again in September 2003.  Again, according to OGC, none of those involved in these briefings expressed any reservations about the program.” 

            These passages appear to be broadly consistent with previous CIA statements regarding the timing and content of congressional briefings on EITs.  Speaker Pelosi, who attended the fall 2002 briefing, has acknowledged that she was told at that briefing of the existence of legal opinions allowing the use of EITs, including waterboarding, but has denied that the CIA informed her at that time that EITs had already been used.  The OIG report does not specifically address this point, although it states that the Intelligence Committees were informed of the “use” of EITs in fall 2002, and that implies that the Committees were aware of and approved this use. 

            The report also states, however, that the General Counsel of the CIA (Scott Muller) told investigators that “none of the participants [in the February and March 2003 briefings] expressed any concerns about the techniques or the Program.”  This appears to be flatly false, as Representative Harman wrote Muller immediately after her briefing in February 2003 to express her concerns about the program.   

            It is interesting to note that the IG briefed Representatives Goss and Harman on the findings of this report on July 13, 2004.  If the IG was previously unaware of Harman’s concerns, one would expect that the subject would have arisen at that briefing.  One would also expect that the IG would have been interested in the extent to which Members of Congress were actually aware of the use of EITs, as suggested in the report.  The absence of any IG followup on these issues, if that is the case, seems surprising. 

            It is also worth noting that Scott Muller resigned from the CIA in July 2004. 

 

             

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Senate Ethics Clears Conrad and Dodd

           The Senate Ethics Committee has issued letters to Senators Kent Conrad and Chris Dodd dismissing a complaint filed by Citizens for Responsibility and Ethics in Washington (CREW) regarding mortgages the Senators obtained through the Countrywide Financial “VIP” program.  The committee found no “substantial credible evidence” that the mortgages violated Senate ethics rules, but nonetheless told each Senator that “you should have exercised more vigilance in your dealings with Countrywide in order to avoid the appearance that you were receiving preferential treatment based on your status as a Senator.”

            In order to understand and evaluate the Committee’s findings, it is necessary to look at the relevant provisions of the Senate gift rule which the Senators were charged with violating.  Unfortunately, the Committee itself does not discuss these provisions, or explain how its factual findings relate to these provisions. 

 

In relevant part, the Senate gift rule provides:

No Member, officer, or employee of the Senate shall knowingly accept a gift except as provided in this rule.

A Member, officer, or employee may accept a gift (other than cash or cash equivalent) which the Member, officer, or employee reasonably and in good faith believes to have a value of less than $50, and a cumulative value from one source during a calendar year of less than $100. No gift with a value below $10 shall count toward the $100 annual limit. No formal recordkeeping is required by this paragraph, but a Member, officer, or employee shall make a good faith effort to comply with this paragraph.

* * *

For the purpose of this rule, the term “gift” means any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value. The term includes gifts of services, training, transportation, lodging, and meals, whether provided in kind, by purchase of a ticket, payment in advance, or reimbursement after the expense has been incurred.

* * *

The restrictions . . . shall not apply to the following:

* * *

19) Opportunities and benefits which are

(A) available to the public or to a class consisting of all Federal employees, whether or not restricted on the basis of geographic consideration;

(B) offered to members of a group or class in which membership is unrelated to congressional employment;

(C) offered to members of an organization, such as an employees’ association or congressional credit union, in which membership is related to congressional employment and similar opportunities are available to large segments of the public through organizations of similar size;

(D) offered to any group or class that is not defined in a manner that specifically discriminates among Government employees on the basis of branch of Government or type of responsibility, or on a basis that favors those of higher rank or rate of pay;

(E) in the form of loans from banks and other financial institutions on terms generally available to the public; or

(F) in the form of reduced membership or other fees for participation in organization activities offered to all Government employees by professional organizations if the only restrictions on membership relate to professional qualifications.

In order to determine whether Senators Conrad and Dodd violated this rule, one would expect that the Committee would ask the following questions:

1. Did the Senators receive a benefit from Countrywide that qualifies as a “gift” as defined in the Senate rules?

2. Was the particular benefit one that had a value of more than $100?

3. Was the benefit one that was generally available to the public?

4. Was the benefit offered to members of a group or class in which membership was unrelated to congressional employment?

5. If the answers to questions 1-3 above were yes, and the answer to question 4 was no, were the Senators aware of (or should they have been aware of) these facts?

Did the Senators receive a “gift” as defined in the rule? It is clear that the Senators received loans from Countrywide. It is less clear from the Committee letters what other benefits they may have received. According to the Committee, participants in the VIP program (including those designated as “Friends of Angelo [Mozilo],” the Countrywide CEO, like Senators Conrad and Dodd) “were often offered quicker, more efficient loan processing and some discounts.” However, the Committee does not specifically say whether the Senators received these benefits and, if so, what they were.

Were the benefits received worth more than $100? With regard to the loans, the answer is obviously yes. Assuming that the Senators received discounts, the answer is presumably yes for these as well. The Committee neither describes nor attempts to determine the monetary value of any improved service the Senators may have received.

Were the benefits received generally available to the public? The Committee states to both Senators that “the loans you received appear to have been available industry-wide to borrowers with comparable loan profiles.” This suggests that mortgages on the properties in question would have been generally available to the public. However, with respect to the mortgage that Senator Conrad received on an eight-unit apartment building, the Committee also states that “the substantial credible evidence is that it would not be unprecedented for Countrywide to approve mortgages on multi-unit properties if the loan could be resold on the secondary market.” There is a significant gulf between a loan being “generally available” to the public and it not being “unprecedented” for Countrywide to extend such a loan. The Committee does not attempt to reconcile this discrepancy.

With regard to the terms of the loans, the Committee states to both Senators that “[t]here is no evidence that the interest rates for your Countrywide mortgages were below prevailing market rates.” It also states that the “terms and conditions” of the mortgages were “available to borrowers with similar loan profiles.”

With regard to discounts or other financial benefits, however, the Committee is less definitive. It states, for example, that there is no credible evidence the Senators “knowingly received” any “financial benefits not available to other borrowers with similar loan profiles.” It also states there is no evidence that the Senators were ever informed they “were receiving specific discounts or other special treatment not available to other borrowers because [their] status as a Senator.” These statements leave open the possibility that financial benefits or discounts were received, albeit without the Senators’ knowledge about the fact of or reason for preferential treatment.

Finally, with respect to service, the Committee states that “[w]hile your Countrywide loans were handled through the V.I.P. loan unit and designated as F.O.A. loans, the service you received was available to thousands of other non-Senate customers at Countrywide . . . .” This implies that there was service provided through the VIP/FOA program that was not generally available to the public. The Committee, however, does not specifically state that the Senators received preferential service, nor identify the nature of the service or its value.

Were the benefits offered to members of a group or class in which membership was unrelated to congressional employment? The Committee fails to answer this question, which is a surprising omission. It emphasizes the fact that the VIP and FOA programs expanded to be quite large and that the VIP unit “handled thousands of loans worth billions of dollars for a very broad spectrum of individuals, large numbers of whom had never met, let alone befriended, Mr. Mozilo.” But this fact seems rather immaterial to the issue, which is whether Senators Conrad and Dodd were included in the VIP program because they were Senators. The Committee never addresses this issue.

If Senators Conrad and Dodd were included in the VIP/FOA program because they were Senators and thereby received discounts, services or other benefits not generally available to the public and with a value greater than the de minimis level, then they received a prohibited gift under the Senate rule. Reading between the lines, one might infer that the Committee found this to be the case, but it goes to some length to avoid saying one way or the other.

What knowledge did Senators Conrad and Dodd have regarding their inclusion in the VIP/FOA program and any benefits that they received as a result? The Committee told each Senator that it “found no evidence that you fully understood the scope of the V.I.P. program, knew that you were in the ‘Friends of Angelo’ program, or attempted to use your status as a Senator to receive loan terms not available to the public.” It fails to explain what it was that was not “fully understood” by the Senators. One might infer that the Senators received a benefit of which they were unaware, or they received a benefit which they did not understand resulted from their participation in the VIP program. However, if this were the case, the Committee should have said so.

Perhaps the most surprising omission is that the Committee does not say whether the Senators understood that they had been included in the VIP program as a result of their congressional status. It indicates that Conrad “did not recall ever being informed what the program was, and . . . assumed it was merely an employee and customer relations effort.” Dodd told the Committee that he “inquired with Countrywide as to what the V.I.P. program was and [was] told that it offered heightened attention to service quality.” Neither of these statements, however, specifically addresses the question of whether Conrad and Dodd were told, or assumed, that they were “VIPs” as a result of being Senators or for some other reason.

The Committee does tell the Senators that their inclusion in a “VIP” program should have raised “red flags” and caused them to inquire further to determine exactly how they came to be members of the program, whether they received treatment based on their official positions and whether they were receiving preferential treatment not available to other borrowers with similar loan profiles. One might infer, therefore, that the Senators had no specific information as to how they came into the program, but the Committee neither expressly states a position on this point, nor explains why the Senators thought they were in the program.

Finally, it should be noted that although the Committee found “no evidence” that the Senators ever asked for “special treatment,” the Committee does note that Conrad spoke personally with Mozilo in 2002 about the possibility of obtaining a mortgage for his beach property, and he later told a Countrywide employee that he was going to tell Mozilo what great service Countrywide provided. While these facts alone don’t prove that Conrad asked for special treatment, they might suggest that he was willing to accept it.

Conclusion. As this post has gone on long enough, I will save extended analysis for another time. For the moment, suffice to say that the Committee’s letters seem to be carefully worded so as to allow it to find no violation without actually explaining why. The most charitable, and I think the most likely, explanation for this is that the Committee concluded the violations were minimal and not the result of any active effort on the part of the Senators; it therefore wrote the letters in a manner designed to minimize the political fallout for Conrad and Dodd. This is understandable, but it is not without cost in terms of public confidence in the ethics process.

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TARP and Stimulus Lobbying by Members of Congress

           Yesterday the Special Inspector General for the Troubled Asset Relief Program (SIGTARP) released a report regarding efforts to prevent “undue external influence” over the TARP program.  On page 13, the report discusses the yet-to-be-issued Treasury rules regarding lobbying on TARP matters: 

At the time of our study, Treasury was still in the process of finalizing its draft policy limiting external communications regarding TARP. A Treasury official stated that the Treasury approval (and subsequent submission to the White House) of this draft policy is awaiting White House approval on similar lobbyist guidelines submitted for American Recovery and Reinvestment Act (“ARRA”) funds. A Treasury official stated that Treasury’s draft policy for TARP funds is similar to the ARRA policy. The TARP policy will state that Treasury employees cannot talk to lobbyists or members of the Congress, with one exception—instances of overarching policy discussions. (emphasis added) 

This paragraph is peculiar for two reasons.  First, although the Obama Administration’s initial policy on stimulus (ie, “ARRA”) lobbying prohibited contacts with registered lobbyists regarding specific projects, it subsequently revised this approach so that registered lobbyists are no longer treated differently than other interested parties.  Instead, under updated guidelines issued on July 24, 2009 , the original guidance to agency officials was “clarified” as follows: 

During the period of time commencing with the submission of a formal application of a formal application by an individual or entity for a competitive grant or other competitive form of Federal financial assistance under the Recovery Act, and ending with the award of the competitive funds, you may not participate in oral communications initiated by any person or entity concerning a pending application for a Recovery Act competitive grant or other competitive form of Federal financial assistance, whether or not the initiating party is a federally registered lobbyist. 

Second, although the updated guidelines generally ban oral communications with “any person or entity” during the blackout period, they contain an exception for communications with “another Federal Government employee.”  Thus, unlike the proposed TARP policy, the stimulus guidelines do not discriminate against lobbyists, and they do not apply to Members of Congress at all, unless one interprets the term “Federal Government employee” not to include Members of Congress. 

Dan Schuman of the Sunlight Foundation, reviewing the updated stimulus guidelines, suggested that the term “federal government employee” might not, at least literally, cover Members of Congress.    However, he argued that this was probably an unintended consequence of the guidelines and, upon further reflection, concluded that the term was probably best interpreted as covering all federal officials in any branch of the government. 

I agree with Schuman that the stimulus guidelines are ambiguous, but I wonder whether this resulted from simple inadvertence.  Given the fact that the guidelines explicitly address the question of when communications with state legislators are permitted (ie, only when they are from “the Presiding Officer or Majority Leader” in each chamber), it seems surprising that the guidelines do not expressly mention communications with federal legislators.  The SIGTARP report suggests the possibility that there may have been an intent, at least at one point, to ban communications with Members of Congress (which, I have previously argued, could otherwise undermine the effectiveness of the attempt to limit outside influence).  It may be that the revised guidelines were left deliberately ambiguous on this point, or that they were written so as to avoid making it obvious that Members of Congress are permitted to intervene in the competitive award process. 

In any event, it would seem odd if the guidelines for TARP lobbying forbade communications with Members of Congress, while those for stimulus lobbying did not.  I guess we will have to await further “clarification” from the administration to find out which it is.     

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Constitutionality of Revolving Door Statute Called into Question

            A federal judge has preliminarily enjoined enforcement of the Ohio revolving door statute against a former state legislator who sought to lobby his former colleagues on an uncompensated basis.  (hat tip—Election Law Blog). In Brinkman v. Budish, No. 1:09-cv-326 (S.D. Ohio Aug. 4, 2009), the court found a substantial likelihood that the law, as applied, would violate the First Amendment.  It accepted that the statute furthered a compelling governmental interest in preventing corruption or the appearance of corruption, but concluded that it was not narrowly tailored to advance this interest.  Specifically, the court was not persuaded that the statute, “at least as applied to the situation of a former member seeking to represent an organization on an uncompensated basis, furthers the interest in curbing quid pro quo corruption.”  Moreover, given that the statute prohibited lobbying on matters even if the former member had not personally participated in the matter while in office, the court did not believe that the law was narrowly tailored to curb the inappropriate use of inside information. 

            It is worth noting that federal law (18 U.S.C. 207(e)) prohibits lobbying by former Members of Congress (as well as congressional officers and senior staff) “on behalf of any other person” during a cooling off period.  This prohibition applies even to lobbying that is done on an uncompensated basis.  Thus, the reasoning of this decision would seem to call into question the constitutionality of that aspect of the federal law. 

            The Brinkman court also found merit to the claim that the Ohio statute violated equal protection “because it treats former General Assembly members who seek to represent a state agency on a matter before the General Assembly more favorably than it treats former General Assembly members who seek to represent a private client on a matter before the General Assembly.”  The court was not persuaded by the argument that representing a state agency does not raise the same type of corruption concerns as representing a private organization.  This would also be an issue that could be raised with regard to federal law, which excepts representing the United States from revolving door restrictions.

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Washington Post Seeking Access to Jurors in William Jefferson Case

           The Washington Post reporter has asked Judge Ellis to provide him a list of jurors who served on the William Jefferson case so that he can attempt to contact them for interviews.  According to this letter, the reporter has obtained such information in the past on “high profile cases” from the clerk’s office. 

            If the court is not obligated to make such information public, it seems odd that it would provide juror information to media outlets seeking to interview them.

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Renzi and Feeney

           The Government has filed its opposition to former Congressman Renzi’s appeal of the Magistrate Judge’s Speech or Debate rulings.  Its brief argues that “[t]he crux of the honest services case against Renzi . . . are his acts of receiving a personal benefit for a decision while purporting to be exercising independent discretion, as well as his nondisclosure of material information to Resolution Copper and the Aries Group.”  (brief at p. 10, emphasis added).  This, it argues, is not covered by Speech or Debate because it is indistinguishable from bribery cases (like United States v. Myers, 635 F.2d 932 (2d Cir. 1980) and United States v. Williams, 644 F.2d 950 (2d Cir. 1981)) in which the Member of Congress is prosecuted for accepting personal benefits given for the purpose of influencing the Member in regard to future legislative action. 

            But there is a distinction between cases like Myers and Williams, on the one hand, and Renzi’s, on the other.  In bribery cases the personal benefit can be separated from the legislative action, at least in theory.  The Member is charged with having accepted money (or some other personal benefit) from the bribegiver.  The only thing that need be proved with respect to the Member’s state of mind is his knowledge of the bribegiver’s corrupt intent, namely that the money is intended to influence the Member’s future legislative actions.  The Member’s own intent or state of mind with regard to the legislation is irrelevant. 

            The Renzi case, however, is different.  As the government itself notes, Renzi is charged with making a decision (i.e., which bill to support) on the basis of something other than his “independent discretion.”  In other words, he is charged with supporting legislation not because he believed it was in the public interest to do so, but because he stood to gain financially from it.  Thus, his state of mind with regard to the legislation itself is in issue.  The government simply ignores this fundamental point. 

            The government also discusses the D.C. Circuit’s recent decision in the Feeney case (which I discussed in previous posts).  In that case, former Congressman Feeney had claimed that his golfing trip to Scotland was for “legislative factfinding” purposes.  The D.C. Circuit made a point of noting that such legislative factfinding is protected by Speech or Debate.  The Renzi prosecutors, however, discount this language, noting that the issue in Feeney was whether his testimony before the Ethics Committee was protected by Speech or Debate, not whether his activities in Scotland were protected. 

            The D.C. Circuit’s statements regarding the allegedly legislative nature of Feeney’s trip may have been dicta, but they certainly suggest that the court viewed not only Feeney’s testimony, but also his trip, to be entitled to Speech or Debate protection.  In any event, the Feeney and Renzi cases together illustrate an important fact about judicial interpretation of the Speech or Debate Clause.  Too often it seems that what passes for Speech or Debate “analysis” is really nothing more than judges issuing the magic words that certain acts are “legislative” and certain acts are “non-legislative,” with little connection to the purpose that the Clause is intended to serve.   

         Whatever “legislative factfinding” Feeney was doing while golfing at St. Andrews, the connection between his trip and the legislative process seems vastly more attenuated than with that with respect to Renzi’s discussions about land exchange legislation.  Without a coherent theory of why Speech or Debate protection exists in the first place, both legislators and the general public will understandably look at cases like these and wonder- what is the Speech or Debate Clause good for?