DADT and the Duty to Defend

Professor Jason Mazzone has a political suggestion for the Obama administration over at Balkinization:  wait until after the November elections to decide whether to appeal a federal court ruling that the “Don’t Ask Don’t Tell” policy is unconstitutional.  Noting that the President has opposed DADT and promised to repeal it, Mazzone argues that “[i]f Republicans make significant gains in Congress (thereby making repeal of DADT less likely), the Administration can decline to appeal, thereby leaving Judge Phillips’s ruling in place, with the hope that the failure to appeal won’t get much political traction in 2012.”

This may be good political advice, but it overlooks a couple of relevant legal points.  First, such a strategy would violate the spirit, and quite possibly the letter, of federal law.  The Attorney General is required by statute to report to Congress (specifically, the House and Senate leadership, the chairman and ranking members of the Judiciary Committees and the House and Senate legal counsels) whenever he determines “not to appeal or request review of any judicial . . . determination adversely affecting the constitutionality of any . . . provision” of federal law (28 U.S.C. § 530D(a)(1)(B)).  Such report must be submitted “within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding, but in no event later than 30 days after the making of each determination.” (28 U.S.C. § 530D(b)(2)).  By delaying a decision not to appeal, the Justice Department might very well leave the House and Senate without a reasonable opportunity to intervene in support of the statute’s constitutionality.

Second, longstanding Justice Department policy is that it “appropriately refuses to defend an act of Congress only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly indicates that the statute is invalid.”  Neither of these exceptions hold true with respect to DADT.

Accordingly, however much the administration may disapprove of DADT, it has an obligation to defend its constitutionality in court. Evidently it intends to continue to do so.

Lobbying Ethics in Canada

Those interested in the subject of lobbying ethics may wish to take note of the Canadian Lobbying Code of Conduct, which has been in force since 1997.  Compliance with the code is monitored by the Commissioner of Lobbying, an independent officer of Parliament.  In the event that the Commissioner finds a violation, she sends a report to Parliament, which presumably may take action with regard to the violator. 

            The Canadian Lobbying Code sets forth three basic principles (integrity and honesty, openness, and professionalism) and eight specific rules.  Rule 8, which has been the subject of a recent interpretation by the Commissioner, provides that “[l]obbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder.” 

            The Commissioner issued this opinion about a week ago, interpreting Rule 8 in the context of political or campaign activities by lobbyists.  The opinion starts with the proposition that a “conflict of interest may arise when a person engages in political activities that advance the private interest of a public office holder, while at the same time, or subsequently, seeking to lobby that public office holder [or the office holder’s department or staff].”  It then goes on to identify political activities that have a low risk of presenting such a conflict (merely voting in an election, putting up a yard sign or making a campaign contribution), those that present a medium risk of such a conflict (being a member of the office-holder’s constituency association, which I take it is like the local party organization that supports an MP, or having limited participation in the office-holder’s campaign), and those that present a high risk of conflict (organizing fundraising or chairing the office-holder’s campaign). 

            It is interesting that the Commissioner draws a distinction between merely making permissible campaign contributions, which is not thought to present a significant conflict, and “organizing fundraising,” which is.  The ABA Task Force on Lobbying Reform has been wrestling with a similar distinction. 

            My understanding is that the Commissioner’s opinion is controversial and could face legal challenges.

Eddie Bernice Johnson and the OCE Process

This article in the Hill raises the question of whether there will be an ethics investigation of Representative Eddie Bernice Johnson, who has “been accused of awarding thousands of dollars in college scholarships to four relatives as well as the child of a top aide over the past 5 years.”  Johnson, a member of the Congressional Black Caucus (CBC), awarded the scholarships funds through a program funded and administered by the Congressional Black Caucus Foundation (CBCF), a private, nonprofit organization.  Johnson’s actions allegedly violated CBCF rules in various respects, including an explicit prohibition against nepotism. 

            Somewhat surprisingly, none of the individuals quoted in the article allude to the most obvious reason that there will be an investigation, namely the existence of the Office of Congressional Ethics (OCE).  Prior to OCE’s establishment in 2008, it is entirely possible, even likely, that the House Ethics Committee would have regarded this as an internal matter for the CBCF and taken no action. 

            The OCE changes the dynamics considerably.  H. Res. 895, which established OCE, charges it with conducting a preliminary review of “any alleged violation by a Member, officer, or employee of the House of any law, rule, regulation or other standard of conduct applicable to the conduct of such Member, officer, or employee in the performance of his duties or the discharge of his responsibilities.”  If the OCE concludes, after conducting a preliminary and second phase review, that further review is warranted, it refers the matter, along with limited findings, to the House Ethics Committee. 

            As determined by the OCE in its rules, a preliminary investigation is opened when there is a “reasonable basis” to believe that the alleged violation has occurred.  The “reasonable basis” standard, defined as a “reasonable and articulable basis for believing the allegation,” appears to be a pretty low threshold.  A second phase review is initiated when there is “probable cause” to believe that the alleged violation has occurred.  “Probable cause” exists when the “evidence is sufficient to lead a person of ordinary caution and prudence to believe or entertain a strong suspicion that a Member, officer or employee committed a violation.”  

            Finally, OCE will refer a matter to the House Ethics Committee if there is “substantial reason” to believe the allegations.  “Substantial reason” exists if “there is such relevant evidence a reasonable mind might accept as adequate to support a conclusion.”  In other words, it is not necessary that the OCE believe that a violation occurred, only that there be enough evidence that a reasonable person could draw this conclusion.  Moreover, if OCE cannot obtain the information needed to make the “substantial reason” determination, it may nonetheless refer the matter based on the lower standard of probable cause.   

            The application of these standards to the Johnson case would seem to make a referral nearly a fait accompli.   It appears to be undisputed that Johnson distributed CBCF scholarship funds to relatives, including her own grandchildren, in clear contravention of a CBCF rule against nepotism.  (It also appears that some of the awardees may have ineligible under CBCF rules because they did not reside in Johnson’s district).  Johnson may offer various reasons in defense or mitigation, such as her ignorance of the rules, but it is hard to see how a “reasonable mind” would be required to accept them. 

            It might be argued that CBCF rules, being those of a private organization, are not the type of rules which OCE is supposed to enforce.  Johnson’s distribution of scholarship funds, it might be contended, was not part of her official duties or responsibilities, and therefore falls outside of OCE’s jurisdiction. 

            I think it is very unlikely that such a defense would work.  CBCF is a private organization, but CBC is a congressional member organization authorized by the Committee on House Administration.  The links between CBCF and CBC go well beyond the ceremonial.  The CBCF is chaired by a member of the CBC and many CBC members serve on its board.  The scholarship program in question is designed specifically to be awarded by each CBC member to residents of his or her district.  Moreover, Representative Donald Payne, the current chair of CBCF, recognized the applicability of congressional ethics standards when he announced that “the CBCF will usher in the creation of an Ethics Advisory Committee” to “ensure that all CBCF initiatives are in compliance with the ethical standards of Congress.”  

            Finally, even if Johnson’s conduct was not “official” in the purest sense, she would remain subject to general congressional ethics standards such as that a Member “shall behave at all times in a manner that shall reflect creditably on the House.”  (House Rule XXIII, cl. 1).  While these rules are not normally applied to purely personal conduct, there can be little doubt that they would apply to Johnson’s quasi-official conduct here. 

            For these reasons it seems nearly inevitable that there will be an OCE investigation and referral of this matter (unless the House Ethics Committee pre-empts OCE by taking action first).