Author: Michael Stern

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More on the Wilson Matter

 

           A few more observations on the Joe Wilson matter.  A Fox News reporter this morning commented that Wilson’s conduct violated section 370 of the House Rules and Manual.  This is true, sort of.  Section 370 is actually the provision of Jefferson’s Manual of Parliamentary Practice which states “[i]n Parliament, to speak irreverently or seditiously against the King is against order.”  As the House Parliamentarian’s Notes observe, this provision is “manifestly inapplicable” to the House of Representatives.  However, because the House Rules do not directly address the subject, this section is where the Parliamentarian has collected the rulings (quoted in my previous post) regarding “personal abuse, innuendo, or ridicule of the President.” 

            Second, there has been some more explanation regarding the “resolution of disapproval.”  As I surmised, this resolution is intended to be a form of punishment.  One article says that “[r]esolutions of disapproval are a rare, though not unprecedented, way of punishing a member.”  Maybe so, but this historical summary of conduct cases in the House, compiled by the Ethics Committee, contains no evidence that the House has ever used a “resolution of disapproval” to punish a member. 

            Apparently the “resolution of disapproval” is meant to be a milder punishment than the recognized punishments of censure or reprimand.  According to Rule 24(g) of the Rules of the House Ethics Committee, reprimand is appropriate for “serious violations” and censure is appropriate for “more serious violations.”  Why, exactly, the House would need to establish yet another level of verbal chastisement for Representative Wilson is a matter of speculation.  Perhaps it was deemed unwise to equate Wilson’s behavior with that of those who have been previously reprimanded by the House.   Representative Barney Frank, for example, was reprimanded in 1990 for “1) Use of personal residence for prostitution by third parties, 2) improper contacts with probation office on behalf of personal assistant, 3) improper dismissal of assistant’s parking tickets, and 4) sexual activity in the House gymnasium.”  

            Finally, it is worth mentioning a precedent that is likely to be discussed in the debate on the resolution of disapproval.  On October 18, 2007, Representative Pete Stark, in discussing a children’s health care bill, stated: ‘‘You don’t have money to fund the war or children. But you’re going to spend it to blow up innocent people if we can get enough kids to grow old enough for you to send to Iraq to get their heads blown off for the President’ amusement.’’  The chair responded to this comment by noting “Members are reminded not to engage in personalities toward the President.”  This, however, was not sufficient for Minority Leader Boehner, who introduced a resolution to censure Stark, which resolution was tabled by a vote of 196 to 173.   

            I think fair-minded people will agree that Stark’s comment was significantly worse, from the standpoint of heaping opprobrium on the president, than Wilson’s.  While Stark’s comment was not made during a presidential address, it equally lacked any legitimate connection to a House power or duty, and was at least as likely to cause ill-feeling, estrangement and loss of respect between the branches.  It is therefore difficult to see how one could justify punishing Wilson if one did not support punishing Stark. 

            The one distinction that favors Stark is that he apologized on the House floor, which is what Wilson’s critics have demanded (and probably why they have demanded it).  However, Stark did not apologize until after the resolution of censure was tabled, and there is no particular reason to believe that he would have been punished if he had not apologized.  More importantly, it is unclear why a personal apology offered to the President, as occurred in Wilson’s case, should be less of a mitigating factor than an apology given on the House floor.  (The House Ethics Committee has considered personal apologies as mitigating factors in the past, for example in the case of personal apologies made by members to Representative Nick Smith after they made “regrettable” comments to him during the vote on the Medicare Prescription Drug bill of 2003).

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Scolding Joe Wilson

The Hill newspaper reports that Speaker Nancy Pelosi “has agreed the House should vote . . . on scolding Rep. Joe Wilson (R-S.C.) for his outburst during President Barack Obama’s speech unless he apologies on the floor of the House.”  The “scolding” will apparently take the form of a “resolution of disapproval” that would be introduced sometime this week.  It is not exactly clear what a “resolution of disapproval” is, but it appears to be in substance a censure or reprimand of Representative Wilson.  

            It is perhaps a fool’s errand to analyze this intensely political and subjective issue as a question of neutral application of House rules, but since there are no doubt Members of Congress asking the Parliamentarian to do just that, here goes.   

            Although The Hill states that it is against House rules to “impugn the integrity of the president,” one will search the House rules in vain for an express declaration to that effect.  Rule XVII, dealing with “Decorum and Debate,” prohibits references in debate to the Senate, Senate proceedings or individual Senators, but does not explicitly mention the President.   

            Nevertheless, House precedents clearly establish limits on what Members can say about the President on the floor.  This question was most thoroughly considered in 1909, when Representative Willett accused President Theodore Roosevelt of “persistent defamation” of a particular military officer.  Another Member raised a point of order and asked that the words be taken down and reported to the House.  Subsequently, the House approved a resolution to appoint a special committee to look into the matter. 

            Representative Willett argued that he did not violate any rule, stating: “Freedom of speech has always been held so sacred that the utmost latitude has been allowed in debate, and I respectfully submit that to strike my speech from the Record in this instance will establish a precedent extremely dangerous, because it will mean, in the light of past precedents, that the House has at last surrendered to the proposition that no Member can discuss any subject the discussion of which happens to displease the majority.”

The committee, however, rejected this argument, noting that “freedom of speech in debate does not mean license to indulge in personal abuse or ridicule. The right of Members of the two Houses of Congress to criticise the official acts of the President and other executive officers is beyond question, but this right is subject to proper rules requiring decorum in debate.” Analogizing to the prohibition on criticizing the Senate, the committee pointed out that “[i]n matters of legislation the Constitution therefore makes the House of Representatives, the Senate, and the President coordinate, dependent, and interdependent powers, and the principles of proper decorum and due courtesy governing the relations of the two Houses of Congress should also, to a certain extent, govern the relations of the House of Representatives and the President.” Finally, it recognized that there was no “clear line of distinction” between legitimate criticism of the President and that which is “merely personal and irritating, having no legitimate connection with the powers or duties of the House and tending only to produce ill feeling, estrangement, and loss of respect between two coordinates branches of the Government.” Nevertheless, it concluded that Willett’s words crossed the line and should be expunged from the record. See VI Cannon’s Precedents § 2497.

In accordance with this precedent, a Member alleged to have referred to the President in terms of opprobrium may be called to order under House Rule XVII, clause 4, and the Chair will determine whether the remarks were in order. If the Chair (or the House) rule against the Member, he or she is not permitted to speak further on that day without the permission of the House. A review of the Parliamentarian’s Notes reveals that there have been many instances where Members have crossed the line in discussing the President:

Personal abuse, innuendo, or ridicule of the President, is not permitted

(VIII, 2497; Aug. 12, 1986, p. 21078; Oct. 21, 1987, p. 8857; Sept. 21, 1994,

p. 25147; Sep. 7, 2006, p. ——). Under this standard it is not in order

to call the President, or a presumptive major-party nominee for President,

a ‘‘liar’’ or accuse him of ‘‘lying’’ (June 26, 1985, p. 17394; Sept. 24, 1992,

pp. 27345, 27346; Nov. 15, 1995, p. 32587; June 6, 1996, pp. 13228, 13229;

Mar. 18, 1998, p. 3937; Nov. 14, 2002, p. 22370; July 15, 2003, p. ——;

Mar. 24, 2004, p. ——). Indeed, any suggestion of mendacity is out of order.

For example, the following remarks have been held out of order: (1) suggesting

that the President misrepresented the truth, attempted to obstruct

justice, and encouraged others to perjure themselves (Feb. 25, 1998, p.

2621); (2) accusing him of dishonesty (July 13, 2004, p. ——; June 29,

2005, p. ——), accusing him of making a ‘‘dishonest argument’’ (Sept. 12,

2006, p. ——), charging him with intent to be intellectually dishonest (May

9, 1990, p. 9828), or stating that many were convinced he had ‘‘not been

honest’’ (Mar. 5, 1998, p. 2620); (3) accusing him of ‘‘raping’’ the truth

(Apr. 24, 1996, p. 8807), not telling the truth (Oct. 29, 2003, p. ——), or

distorting the truth (Sept. 9, 2003, p. ——); (4) stating that he was not

being ‘‘straight with us’’ (Nov. 19, 2003, p. ——); (5) accusing him of being

deceptive (Mar. 29, 2004, p. ——; Mar. 31, 2004, p. ——; Feb. 1, 2006,

p. ——), fabricating an issue (July 6, 2004, p. ——), or intending to mislead

the public (Oct. 6, 2004, p. ——; June 9, 2005, p. ——); (6) accusing him

of intentional mischaracterization, although mischaracterization without

intent to deceive is not necessarily out of order (July 19, 2005, p. ——).

Although Rule XVII provides that “[i]f the case requires it, an offending Member, Delegate, or Resident Commissioner shall be liable to censure or such other punishment as the House may consider proper,” it does not appear that any Member has ever been punished for making inappropriate remarks about the President. In many cases, Members who have violated the rules have merely been admonished by the Chair. For example, on June 29, 2005, Representative McGovern stated on the floor that President Bush had “misled this Nation to justify his invasion of Iraq” and “shamelessly, in my opinion, invoked the terrible tragedy of September 11 to justify our continued occupation.” Representative McDermott then referred to Iraq as “a war of conquest by George Bush” and noted that “nobody trusts [the President’s] judgment.” In response, the Chair reminded members that “they should not make derogatory statements toward the President.” No further action appears to have been taken.

Had Representative Wilson accused President Obama of lying about health care in the course of debate, it seems likely that he would have received a similar reminder but no other consequences. At most, his words would have been taken down and ruled out of order. It seems inconceivable, based on House precedents, that he would have faced censure or other punishment.

Of course, Wilson’s remark did not occur in the course of debate, but was an interjection during the President’s address to a joint session of Congress. One can therefore plausibly argue that he committed a greater offense, from the standpoint of decorum, than someone who made similar remarks in the course of a debate. It certainly seems that crying out “you lie” in the middle of the President’s speech has no legitimate connection to the House’s powers or duties and tends only to produce ill feeling, estrangement, and loss of respect between the branches.

On the other side, Wilson did apologize, both publicly and to the President, for his behavior. Given this apology, it is hard to see how one could characterize his behavior as so much worse than garden variety “abuse, innuendo or ridicule of the President” to warrant an unprecedented punishment by the House.

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D.C. Circuit Rejects Constitutional Challenge to Lobbying Disclosure

           The D.C. Circuit ruled this week in National Association of Manufacturers v. Taylor, rejecting NAM’s challenge to the constitutionality of section 207 of the Honest Leadership and Open Government Act (HLOGA), which enhanced a previous disclosure requirement of the Lobbying Disclosure Act (LDA) (hat tip: Election Law Blog).  Under this provision, disclosure is required not only of the organization which nominally conducts lobbying activities, but of any other organization which contributes more than $5,000 toward, and actively participates in, such lobbying activities.  In NAM’s case this would mean that it would be required to identify member companies that fund and actively participate in particular lobbying activities.  NAM argued that this requirement violated its First Amendment rights and “would chill NAM members from participating in public policy initiatives for fear of the consequences of public disclosure.”  It also argued that the provision was unconstitutionally vague. 

            The result in the case is not particularly surprising.  However, some of the court’s language, in an opinion authored by Judge Garland and joined by Judges Ginsburg and Henderson, is noteworthy for how strongly it affirms Congress’s authority to require the disclosure of lobbying-related information.  Although the court acknowledges that the LDA/HLOGA requirements do place a burden on NAM’s First Amendment rights, it finds this burden is justified by the “vital national interest” in public disclosure of “’who is being hired, who is putting up the money, and how much’ they are spending to influence legislation.”  (citing United States v. Harriss, 347 U.S. 612, 625-26 (1954)).  It is also largely dismissive of NAM’s attempts to question the utility of the information disclosed under the statute and the clarity of the statutory definition of “lobbying activities.” 

Finding that the government’s compelling interest in lobbying disclosure has been long settled by Harriss, the court is definitive in its rejection of the constitutional challenge.  Its sweeping language is likely to discourage future challenges to the disclosure requirements of LDA/HLOGA: 

Because nothing has transpired in the last half century to suggest that the national interest in public disclosure of lobbying information is any less vital than it was when the Supreme Court first considered the issue, we reject [NAM’s] challenge.

            * 

            For more than sixty years, Congress has sought to expose the lobbying of government officials to public scrutiny.  Acronyms and intricacies aside, the progression from the FLRA [Federal Regulation of Lobbying Act of 1946] to the LDA to the HLOGA marks the legislature’s attempt to shine increasing light on the efforts of paid lobbyists to influence the public decisionmaking process.  We find nothing unconstitutional in the way Congress has gone about that task. (emphasis added)

 

                       

             

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Is Vicki Kennedy Unconstitutional?

           As has been widely discussed in the last few weeks, in 2004 Massachusetts changed its law providing for the filling of a senatorial vacancy.  In order to prevent Republican Governor Mitt Romney from filling John Kerry’s Senate seat (in the event that the latter won the 2004 presidential election), the Democratic legislature repealed the prior law which permitted the Governor to make temporary appointments in the event of a vacancy. 

            The current Massachusetts law (Chapter 236 of the Acts of 2004) provides that “[u]pon failure to choose a senator or representative in Congress or upon creation of a vacancy in that office, the governor shall immediately cause precepts to be issued to the aldermen in every city and the selectmen in every town in the district, directing them to call an election on the day appointed in the precepts for the election of such senator or representative.  The day so appointed shall not be more than 160 nor less than 145 days after the date that a vacancy is created or a failure to choose occurs.  Filing a letter of resignation creates a vacancy under this section, even if the resignation is not effective until some later time, but the date of the election to fill a vacancy under this section shall be after the resignation is effective.” 

            Pursuant to this law, Governor Patrick has set a special election date of January 19, 2010 to fill the vacancy created by Senator Edward Kennedy’s death last week.  As things stand, the Governor has no authority to make a temporary appointment to fill the seat until the special election. 

            Before his death, Kennedy had urged Massachusetts leaders to change the vacancy law to allow for temporary appointments.  Kennedy also advocated the Governor appoint someone who made an explicit personal commitment not to be a candidate in the special election.  The Massachusetts legislature is scheduled to conduct hearings on this proposal next week, and few will be surprised if the law is hastily changed again to allow for temporary appointments. 

            Nothing in the Constitution appears to prevent a state legislature from changing its law to allow for the temporary filling of a vacancy that has already occurred or, indeed, from changing its law back and forth to permit or forbid temporary appointments depending on who is serving as Governor.  However unseemly such partisan manipulation may be, the Massachusetts legislature would seem to be free to empower Governor Patrick, pursuant to the Seventeenth Amendment, to fill Kennedy’s seat with a candidate of his choosing (the answer to the question posed by the title to this post, referring to widespread speculation that the Governor will appoint Kennedy’s widow, is therefore no).

A more difficult constitutional question is whether the legislature can constrain the Governor’s choice. As Professor Vikram Amar points out (hat tip: Election Law Blog), the Seventeenth Amendment does not give the state legislature any authority to make or constrain the making of temporary appointments. Therefore, he argues that it is unconstitutional for the legislature, for example, to require that a temporarily appointed senator be of the same political party as the senator he or she replaces (a few states have enacted such a requirement). He bases this argument in large part on the fact that “backers of the Seventeenth Amendment . . . wanted to put state legislatures out of the business of picking Senators.”

I am not inclined to read as much into the legislative history of the Seventeenth Amendment as Professor Amar. Unquestionably the amendment was motivated by the belief that senators should be selected by the people, rather than by state legislatures, but it seems likely that the temporary appointment process was based more on the fact that Governors would be able to appoint a replacement quickly than on a relative preference for the democratic accountability of the executive compared to the legislative branch. After all, the original Constitution had authorized the executive to make temporary appointments. And if the framers of the Seventeenth Amendment had been so distrustful of state legislatures, they would not have left it up to the legislatures to decide whether to give the temporary appointment authority to the Governor. (Of course, the performance of the Massachusetts legislature may suggest that greater suspicion would have been warranted, but that’s another story.)

Nevertheless, Amar is probably correct that the legislature cannot constitutionally prohibit the Governor from selecting anyone for a Senate appointment who meets the constitutionally prescribed qualifications (age, residency and citizenship). These qualifications are exclusive and attempts by either the Congress or the states to add to them have been held unconstitutional by the Supreme Court. Thus, were the legislature to enact a “same party” limitation on the appointment power and the Governor were to ignore it, the Senate would probably be obligated to seat the Governor’s choice.

But suppose one looks at the “same party” rule not as an attempt to add new qualifications, but as an instruction to the Governor as to how the legislature wishes the appointment power to be exercised? In that case, the Governor would in essence make a compact with the legislature that only members of the same party will be appointed. Violation of that compact may not be specifically enforceable, but the legislature could revoke the compact (i.e., repeal the temporary appointment authority) if the Governor fails to comply with its instructions. It is difficult to see why this would present a constitutional problem, particularly if the limitation were couched in advisory terms.

A similar analysis would apply to an attempt by the legislature to instruct the Governor to appoint only individuals who promised not to stand as candidates in the special election. This promise would not itself be enforceable (i.e., the legislature could not forbid appointed senators from running in the special election), but there is nothing per se unconstitutional about including such a request/instruction to the Governor in the enabling legislation.

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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.