Month: November 2009

             For those who would like to read the aforementioned leaked House Ethics report, it is now available here.  No thanks to the Washington Post.

           The Senate Ethics Committee has issued a letter of “qualified admonition” to Senator Roland Burris regarding sworn and unsworn statements made by the Senator regarding the circumstances of his appointment to the Senate seat vacated by Barack Obama.  Burris, of course, was appointed by then-Governor Rod Blagojevich, who subsequently was impeached and indicted for misconduct that included attempting to sell that same Senate seat.  The Committee informs Senator Burris that “you should have known that you were providing incorrect, inconsistent, misleading, or incomplete information to the public, the Senate, and those conducting legitimate inquiries into your appointment to the Senate.” 

            The Committee points in particular to Burris’s January 5, 2009 affidavit, in which he averred that he was contacted on December 26, 2008 by Sam Adams, Jr., an attorney employed by Governor Blagojevich (and a fine beer), who asked if he would be interested in accepting the Governor’s appointment to the Senate seat.  In the final paragraph of the affidavit, Burris states: “Prior to the December 26, 2008 telephone call from Mr. Adams, Jr., there was not any contact between myself or any of my representatives with Governor Blagojevich or any of his representatives regarding my appointment to the United States Senate.”  (emphasis added) 

            Unfortunately for Burris, this statement is difficult to reconcile with a conversation that he had with Rob Blagojevich, the Governor’s brother, on November 13, 2008.  Even more unfortunately for him, that conversation was tape recorded by federal investigators, and the transcript was produced to the Senate Ethics Committee.  

            The conversation was initiated by Blagojevich, who called Burris to seek his help in raising money for his brother’s campaign.  Burris, however, quickly brought up the subject of the Senate seat, telling Blagojevich “I’m very much interested in, in trying to replace Obama.”  The remainder of the conversation continues in that vein, as Blagojevich and Burris strategize as to how Burris could raise funds for the Governor without creating a public trail which might make it more difficult for Burris to be appointed.  As Burris summarized toward the end of the conversation: “number one, I, I wanna help Rod.  Number two, I also wanna, you know hope I get a consideration to get that appointment.” 

            Burris’s affidavit, therefore, would seem to be clearly false.  Moreover, the November 13 conversation was highly relevant to the inquiries being conducted with regard to Burris’s Senate appointment by Governor Blagojevich, who, as the Committee notes, “had recently been arrested and charged with corruptly using his authority to make a Senate appointment in exchange for campaign contributions and other benefits.”  As the Committee rather mildly puts it, “you should have known that any conversations you had about your desire to seek the Senate seat and about any possible fundraising for the Governor were critical to these inquiries.” 

            You think?   

            Furthermore, Burris had plenty of further opportunities to disclose the November 13 conversation prior to the time that he was seated by the Senate.  The Committee notes that “despite repeated and specific questioning, you did not disclose [the November conversation]” to the Illinois House Impeachment Committee at a January 8, 2009 hearing.  Similarly, Burris failed to disclose this conversation during meetings with Senate leaders and the press during this time period   

            Finally, the Committee notes that Burris has given “multiple and at times contradictory explanations for failing to disclose all your contacts with the Governor’s associates, which individually and collectively gave the appearance that you were being less than candid.” 

            To put the matter plainly, Burris repeatedly failed to disclose his conversation with Rob Blagojevich, despite knowing that this conversation was critical to both the Illinois legislature and U.S. Senate on matters of the utmost importance to the public interest (the impeachment of a Governor and the seating of a U.S. Senator, respectively).  Moreover, his conflicting and unpersuasive explanations of this failure leave little alternative but to conclude that it was intentional. 

            In deciding nonetheless to give Burris the lightest possible punishment (a “qualified” admonition), the Committee apparently gave great weight to the fact the Sangamon County State’s Attorney found “no actionable violations of law.”  This, however, would seem a slender reed to support the Committee’s action (or inaction).  The state prosecutor decided that there was insufficient evidence to charge Burris with perjury.  It appears that this decision was based largely on the fact that in testifying before the Illinois Impeachment Committee, Burris gave incomplete, but not false, answers to broad questions.  With regard to the January 5 affidavit, the state prosecutor apparently accepted Burris’s explanation that his statement was meant only to refer to discussions regarding his actual appointment, not merely to his interest in getting an appointment.  Although this explanation might be sufficient to avoid a perjury charge, it is also one that the Committee itself found wanting.   

            In the context of intentional withholding of critical information from the Senate about a matter of such importance, one would think that at least a serious slap on the wrist would be warranted.   

But apparently one would be mistaken.

            When the Washington Post published an expose a few weeks ago regarding a House Ethics Committee report that was inadvertently released by a committee employee, I wondered why the Post did not put the actual report on its website so that readers could understand the full context of the information the Post was reporting.   According to this interview with one of the Post reporters, the explanation is as follows: 

“[T]he Post reporters and editors are handling this document and its contents with the utmost care. We recognize, and have made clear in our discussions with the ethics committee leaders and the implicated lawmakers, that these investigations are typically handled in a significant amount of secrecy, at least until action is taken or deadlines for action by the committee are triggered. We want to be sure we do our share of fairly and evenly reporting deeper into the allegations and contact the lawmakers in question before publishing information about allegations in the document we obtained.” 

            In other words, the Post claims it is withholding information from its readers in order to protect the confidentiality of the ethics process in the House.     

            This is just not credible.  If the Post were concerned about the confidentiality of the ethics process, it would not have reported broadly on the contents of the leaked report.  It is difficult to imagine that publishing the full report would have any greater impact on the confidentiality of the process than the reporting that the Post has done.  If there were particular passages of the report that were particularly sensitive, they could have been redacted before the document was made public. 

            It is far more likely that the Post’s refusal to make the document public is motivated by a desire to protect its “scoop,” not by the public interest.  This is unfortunate because publishing the actual document would be more useful to its readers, and might even prompt those readers to provide valuable feedback that could advance the public’s understanding of the issues.

           The newly formed Office of Congressional Ethics has run into a bit of trouble as a result of one of the first matters that it has referred to House Ethics Committee.  In a lengthy report, the Ethics Committee rejected and sharply criticized OCE’s findings with regard to an investigation of Representative Sam Graves.  OCE found “substantial reason to believe” that Representative Graves created the “appearance of a conflict of interest” when he and his staff invited a witness to testify at a 2009 Small Business Committee hearing on renewable fuels.  This appearance was allegedly created by the fact that the witness, Brooks Hurst, owned shares of two biofuel companies in which Graves’ wife was also an investor. 

            In evaluating whether Graves had an apparent conflict of interest, it is important to first consider whether Graves’ financial interest in the biofuel industry created an impermissible conflict of interest (actual or apparent) with respect to his legislative activity in the area of renewable fuels.  If so, Graves would be required either to divest himself of any financial interest in the two biofuel companies or to refrain from taking any legislative action that might affect (or be reasonably be perceived as affecting) his financial interest.  Arguably, participating in a Small Business Committee hearing on renewable fuels could constitute such an action. 

            One school of thought would hold that Graves’ financial interest does not create a conflict at all, but rather serves to align his interests with those of the constituents in his rural farming district, who tend to benefit from federal policies that promote biofuels.  Andrew Stark, in his book Conflict of Interest in American Public Life (2000), terms this the “Kerr argument,” so-called after Senator Robert Kerr, who said in 1962: “I represent the oil business in Oklahoma, because it is Oklahoma’s second-largest business and because I am in the oil business . . .  They don’t want to send a man here who has no community of interest with them, because he wouldn’t be worth a plugged nickel to them.” 

            One can criticize the Kerr argument, as Stark does, and it would be going too far to say that Kerr’s position represents the official policy of the U.S. Congress.   Nevertheless, it is a fact that neither the House nor the Senate has sought to prohibit Members from holding financial interests that may be affected by their legislative activities.  In its report on the Graves matter, the Ethics Committee quotes the House Ethics Manual on this point, observing that “’[n]o federal statute, regulation or rule of the House absolutely prohibits a Member or House employee from holding assets that might conflict with  or influence the performance of official duties.’” 

            Instead, Members of Congress are required, by statute and rule, to disclose their financial holdings so that the public can judge whether their actions may have been influenced by these interests.  As the Ethics Committee notes, Graves fully and accurately complied with this requirement.  It is also worth observing that the ownership interest in question amounted to only 0.18% and 0.125% of the two companies respectively, and were valued at a total of between $16,000 and $65,000.  (Hurst’s holdings in the same companies represented about a 0.5% and 0.33% interest respectively). 

The only other relevant provision is House Rule 3, clause 1, which provides “[e]very Member . . . shall vote on each question put, unless having a direct or pecuniary interest in the event of such question.”  However, this provision could not prohibit Graves’ participation in the Small Business Committee hearing because (1) it applies only to actual votes on legislation, not to committee hearings; (2) as interpreted by House precedent, this provision would not apply to the kind of legislation that was discussed in the Small Business Committee hearing because such legislation would have only affected Graves’ financial interests as a member of a class; and (3) the House rule does not actually prohibit anything, but merely leaves it up to the Member to determine whether he or she has a “direct or pecuniary interest” that makes it appropriate to refrain from voting. 

OCE, therefore, did not find that Graves’ financial interest created a conflict with regard to participating in the hearing.  Instead, it found substantial reason to believe that Graves’ financial interest created (the appearance of) a conflict with regard to his role in inviting Hurst to be a hearing witness, given that Hurst had a financial interest in the same two biofuel companies. 

OCE’s position, however, suffers from certain difficulties.  First, OCE does not explain how Hurst’s testimony or participation in the hearing could possibly have advanced Graves’ financial interests, other than the fact that Hurst recommended in the course of his testimony that Congress take certain legislative actions, such as extending the federal Biodiesel Blender’s Credit, which would benefit the biofuel industry.  But these actions, which Hurst advanced as a representative of the Missouri Soybean Association, would benefit the industry as a whole, not just the two biofuel companies in question.  If there would be no impermissible conflict of interest in Graves himself sponsoring, supporting or voting for such legislation, it is difficult to see how Hurst’s testimony could possibly create one. 

Second, it is not obvious why the fact that Graves and Hurst happened to share a financial interest in the same companies has any bearing on the conflict issue.  Why would the issue be any different if Hurst had happened to own shares in a different biofuel company that would benefit from the same legislation?  Or if Hurst had no personal investment at all, but had taken the same position as a representative of the industry?  If there is nothing improper in Graves inviting a witness who supported the same legislative positions as Hurst (and OCE does not suggest otherwise), it is hard to see why it would be improper to invite Hurst. 

Finally, the OCE’s position is further undermined by the fact that there was no realistic possibility that Hurst’s testimony would actually benefit Graves or anyone else.  As the Ethics Committee noted, the Small Business Committee’s hearing was purely informational, and the committee itself had no jurisdiction over the legislation discussed.  Thus, the potential benefit to Graves would seem to be not only indirect, but extremely remote as well. 

           

All in all, I have to agree with the Ethics Committee’s view that inviting Hurst to testify did not create any impermissible conflict, or appearance of a conflict, under the applicable House rules.