When news came out this week that three members of Congress had been referred to the House ethics committee for further investigation into possible ethics violations because of fundraisers they held ahead of a vote on financial reform, observers were surprised that the Office of Congressional Ethics based the decision on the appearance of impropriety rather than solid evidence that anything was done wrong.
But according to House ethics guidelines, looks do matter.
Like their colleagues in the Senate, members of the House are instructed not to make solicitations “which may create the appearance that, because of a campaign contribution, a contributor will receive or is entitled to either special treatment or special access,” according to the 2008 guidelines.
“House Members, too, should be aware of the appearance of impropriety that could arise from championing the causes of contributors and take care not to show favoritism to them over other constituents,” according to an FAQ section. Members of the House and staffers are told they should “always exercise caution to avoid even the appearance that solicitations of campaign contributions are connected in any way with an action taken or to be taken in their official capacity.”
If the House Ethics Committee finds that those members referred to their panel did anything improper, they could impose a penalty on the three Congressmen. But a sanction based only on the timing of a contribution in relation to a vote in Congress, says one D.C. area lawyer, would be unprecedented.
While noting that it is possible that something besides just the timing of the campaign contributions triggered the OCE preliminary investigation, McGuireWoods partner C. Simon Davidson writes that Congressional rules are silent on the issue of the timing of fundraisers.
Neither of the ethics committees in Congress have ever found that the timing of a campaign contribution alone can make such a donation improper, wrote Davidson.
One of the most famous ethics cases involving the appearance of impropriety involved former House Majority Leader Tom DeLay. The House Ethics Committee found that a June 2002 golf resort fund-raiser for his leadership PAC — attended by energy company officials just ahead of work on energy legislation — created an “improper appearance.”
In DeLay’s case, however, the committee looked at issues beyond timing — one of the attendees to the golf outing told the committee that DeLay asked the group “to advise him of any interest” they had in the energy bill. While DeLay said he did not recall what he said, the committee unanimously found that the circumstances of DeLay’s fund-raiser amounted to an appearance of impropriety.
Now some Congressmen involved with the latest probe — both among those referred for further investigation as well as those whose cases were dismissed — are hitting back at the office which made the recommendations.
Rep. Tom Price (R) told a Georgia news station that the Office of Congressional Ethics is “investigating absolutely everything” and that political motivation behind the investigation was “the only answer that I can come to logically” when trying to explain the findings of the office.
Price, along with Reps. John Campbell (R-CA) and Joseph Crowley (D-NY) were referred by OCE for further investigation and have issued statements denying any wrongdoing. The office dismissed similar investigations against five other members.
One of those five House members who was not charged — Oklahoma Rep. Frank Lucas (R) — wrote that the Office of Congressional Ethics should keep investigations closer to the chest.
“I believe that nothing is gained by punishing members in the press before you review our office polices and documents,” he wrote, adding that “members will need more specific guidance if this general fundraising activity now creates the appearance of impropriety based upon association between floor votes and committee assignments.”
The Office of Congressional Ethics has been scrutinized by politicians of all political stripes who have come under the microscope. Both Republicans and Democrats have suggested the office needs to be scaled back. But as an editorial in the New York Times argued earlier this month, perhaps that just means it’s doing its job.