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Dec 18, 2007 -- Reform Groups Send Letter to House Ethics Committee Regarding Convention Parties December 18, 2007
Dear Chairman Tubbs-Jones and Ranking Member Hastings,
We are writing to strongly object to the guidance recently issued by the House Ethics Committee to implement the new ethics rule to restrict House Members from participating in parties that take place at the national nominating convention to "honor" those Members. See sec. 305 of the Honest Leadership and Open Government Act of 2007, Pub. L. 110-81, 121 Stat. 735 (HLOGA).
The Committee's guidance opens gaping loopholes in the new ethics rule enacted just a few months ago to prevent lobbyists and lobbying organizations from gaining favor and influence with Representatives by paying for lavish parties to "honor" the Members. The guidance contravenes and emasculates the meaning, purpose and spirit of the new ethics rule. It is also in direct conflict with a proper interpretation of similar language in the new lobbying disclosure law that was recently issued by the House Clerk and Senate Secretary.
We believe it is incumbent on the Ethics Committee to immediately withdraw this guidance and to issue new guidance that properly reflects the meaning, purpose and spirit of the new ethics rule and of the broader reform effort that included the new rule.
The new ethics rule states that a Member "may not participate in an event honoring that Member…if such event is directly paid for by a registered lobbyist…or a private entity that retains or employs such a registered lobbyist." Rule XXV, cl. 8.
In a memorandum dated June 14, 2007, with reference to the new House ethics rules adopted last January, the House Ethics Committee set a high standard for Member compliance with, and for the Committee's enforcement of, the new rules, and specifically warns against circumvention:
Members and staff should keep in mind that the intent of the House gift rule is to protect the integrity of the House. The House Code of Official Conduct requires House Members and staff to adhere to the spirit as well as to the letter of the Rules of the House. Narrow, technical readings of the House gift rule should be avoided. Memo at 1 (emphasis added).
Instead of following its own warning to Members and staff, however, the Ethics Committee has issued an unjustifiable interpretation of the new ethics rule addressed to parties at the nominating conventions - one that renders the new rule meaningless for all practical purposes.
The Ethics Committee's guidance, issued on December 11, 2007, provides a clear roadmap for Members and lobbyists on how to circumvent and ignore the new rule at the party conventions next year. The door is opened wide by the Committee for lobbyists and lobbying organizations to continue their past practices at conventions of sponsoring and paying for lavish parties to "honor" Members - abusive practices that led to the adoption of the new rule.
The guidance, furthermore, raises basic concerns about what kind of additional damage the Ethics Committee may do to the landmark ethics reforms enacted by the House this year. A failure to properly interpret and enforce ethics rules means failed ethic rules.
The Committee's guidance interprets the rule on parties that "honor" Members at nominating conventions to apply only where a party is held to honor a specific Member, but not to honor a state delegation, a caucus or a congressional committee. The Committee states, "Thus, an event that is organized to honor a delegation or caucus, without naming any specific Member of the delegation or caucus…would be an event that Members may participate in under clause 8 of House Rule 25….There is no numerical requirement on the size of the delegation or caucus participating in the event."
This interpretation defies not just the new ethics rule but common sense.
Does the Committee really believe, for example, that the purpose of this rule was to stop lobbying groups such as the energy industry trade associations from paying for a six-figure party to "honor" a specific House member, but to allow these same trade associations to pay for such a party to honor all of the Members of the House Energy and Commerce Committee?
Does the Committee really believe that the purpose of this rule was to stop lobbying organizations from paying for a party to "honor" a specific Member of the Blue Dogs or of the Congressional Black Caucus, but to allow such lobbying organizations to finance a lavish party at the conventions for all Members of the Blue Dogs or all Members of the Congressional Black Caucus?
Just who do the members of the House Ethics Committee think they are fooling?
The only support cited by the Committee for this gutting interpretation of the rule is a statement inserted in the Extension of Remarks section of the Congressional Record by Rep. John Conyers (D-MI) on August 4, 2007, 153 Cong. Rec. E1759 (Aug. 4, 2007), four days after the passage of the legislation by the House on July 31, 2007.
This effort to provide "retroactive legislative history" for the ethics rule four days after it passed the House directly conflicts with the meaning and purpose of the rule, and represents an attempt to redefine the rule after it had been passed by the House. It should receive no weight from the Committee.
In addition, the Ethics Committee's guidance stands in sharp contrast to the proper interpretation of analogous language made by the House Clerk and the Senate Secretary.
In construing a new reporting provision added by HLOGA to the Lobbying Disclosure Act, which requires lobbyists to report payments made to pay "the cost of an event to honor or recognize a covered legislative branch official," see sec. 212 of HLOGA, the Clerk and Secretary have made clear that the disclosure provision covers payments by lobbyists and lobbying organizations for events held for multiple honorees from Congress. See Office of the Clerk, Amended Guidance to the Lobbying Disclosure Act (Dec. 7, 2007) at 26 (Ex. 1).
The House Clerk and Senate Secretary explained the basis for their interpretation: "This section of the LDA has been written broadly…" Id. at 26.
The House ethics rule was also "written broadly," but instead of following its own admonition to Members that, "Narrow, technical readings of the House gift rule should be avoided," the Ethics Committee has chosen to issue an interpretation that makes a mockery of the new ethics rule.
Another wholly separate, basic problem with the Committee's guidance is that it authorizes lobbyists and lobbying organizations to finance lavish parties "to honor" a specific Representative simply by laundering their contributions through another entity, such as a shell entity set up for the purpose of circumventing the rule.
The Committee said, "The fact that a private organization received some of its funding for an event taking place during a national convention from a lobbyist or private entity that retains or employs lobbyists, by itself, would not disqualify a Member from participating in the organization's event."
The Committee relies on language in the rule which prohibits a Member from participating in an event if the event "is directly paid for" by a lobbyist. Yet this language does not mean, and the House could not have intended, that a lobbyist is permitted to blatantly circumvent and ignore the rule by laundering a payment through another entity.
If the Ethics Committee wants to give meaning to the words "directly paid," consistent with the Committee's warning to adhere to the spirit of the ethics rules and avoid narrow readings, the Committee can conclude that the words here are an effort to distinguish between lobbyists providing their own money to pay for an event, on the one hand, and suggesting to others to provide funds for the event, on the other.
But the interpretation provided by the Ethics Committee is nothing more than a license for lobbyists and Members to cheat and to simply ignore the new rule by doing exactly what this rule was passed to prevent. The interpretation means that lobbyists and lobbying groups could pay for a lavish party "to honor" a Member, the activity the rule was adopted to prevent, simply by laundering the money through another group or entity.
For example, under the Committee's interpretation, lobbyists or lobbying organizations could themselves set up a sham entity, make payments to that entity, and then have the entity pay for the convention party "to honor" a Member. The Member would be able to participate in this party in his honor and be fully aware of the lobbyists and lobbying organizations that provided large amounts to pay for the party through their sham front group.
This is totally inconsistent with the meaning, purpose and spirit of new ethics rule.
Finally, the Committee's guidance permits a Member to participate in an event if the Members' name "appears, for example, in a listing of the names of the honorary host committee members for the event" if that listing also includes some non-congressional host committee members as well.
This again opens the door to easy circumvention of the rule. By listing a Member in the "honorary" host committee, along with a few non-congressional individuals, a sponsor could make clear as a practical matter that the event is in "honor" of that Member. This would allow a Member to attend an event in "honor" of the Member that is funded by lobbyists or lobbying organization by just practicing a little subterfuge in how the event is announced.
We strongly urge the Ethics Committee to withdraw the guidance on parties at the national conventions that it issued on December 11, 2007, and to provide new guidance for Rule XXV, cl. 8, that properly implements, rather than destroys, the new House ethics rule adopted to prevent lobbyists from throwing lavish parties for Members at the party conventions.
Campaign Legal Center
League of Women Voters
Common Cause
Public Citizen
Democracy 21
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