Should the Office of Congressional Ethics be Run by Committee?

         The House’s Special Task Force on Ethics Enforcement (or, more precisely, the Democratic members thereof) recommends the establishment of a six member board to govern the new Office of Congressional Ethics.  Three of the board members would be designees of the Speaker and three would be designees of the Minority Leader.   Although the Speaker and Minority Leader would be encouraged to agree on all of the board members and make joint appointments, in the absence of agreement the leaders could separately appoint their own designees. 

            The Task Force states that the board should be “comprised of individuals of distinction and high qualification.”  It gives examples of the types of individuals to be considered as including “former Members of Congress, former Congressional staff, former state legislators [and] former judges.”  Although the resolution it proposes would establish that selection and appointment of board members be “without regard to political affiliation,” it seems likely that the board would consist of three Democrats and three Republicans (the Task Force itself refers to “bipartisan balance” in the composition of the board).  Thus, it would in essence duplicate the composition of the House Ethics Committee, which is evenly split between the two political parties.  

            The Task Force considered whether the OCE should be overseen by a single director rather than a board.  It rejected this course, however, on the grounds that this would give too much power to a single individual.  The Task Force asserted that in the past “special counsel was hired, either by the Standards Committee or some other Congressional entity, who was widely seen as having overstepped the appropriate extent of his or her authority.”  It expressed concern about “investigations that stray from the original allegations of misconduct, and about individuals who use such unique positions of power to lay the foundation for their own future careers.”

I do not find this reasoning persuasive. In the first place, there is an inherent tension between the goal of ensuring OCE’s independence and that of ensuring that it does not overstep its authority. To the extent that having a board promotes the latter goal, it likely does so at the expense of the former. If the board is risk averse, it will hesitate to undertake any inquiries that might be controversial.

Second, the composition of the board would seem to create incentives similar to those that currently impact the House Ethics Committee itself. The types of people described by the Task Force as candidates for the board will probably have strong political affiliations (and ties to the Speaker or Minority Leader). Even if the members of the board are jointly appointed, they are going to have some degree of loyalty to the leader who designated them. If an inquiry is proposed for Democratic Representative A, there will be a natural tendency for the Democratic appointees on the board to resist, or to suggest that there should also be an investigation of Republican Representative B. This dynamic has often resulted in paralysis of the Ethics Committee, and could have the same impact on the OCE.

Third, there are significant differences between the incentives facing a “special counsel” to a congressional committee and the director of an office like the OCE. The former serves for a brief time (usually a matter of months), often while continuing to serve private clients from his or her law practice, and is responsible only to one or at most a handful of Members. The special counsel, therefore, may have an incentive to promote his or her private law practice (by making as big a splash as possible with the investigation) and less reason to consider the larger institutional interests of Congress.

By contrast, the director of the OCE would work full time for the House of Representatives, and would presumably serve for a period of years. If appointed jointly by the Speaker and the Minority Leader (or, preferably, by a resolution of the House itself), the director would not be loyal to a particular member but to the House as a whole. The director would less invested in the outcome of any particular matter (as compared to a special counsel), but would be more interested in building and preserving the reputation of the OCE as an effective and impartial enforcer of House rules.

An OCE run by a single individual would be more accountable and in all probability more vigorous than one run by a group of people who, however capable and well-intentioned, will be beset by the problem of internal disputes and disagreements which always occur when an enterprise is run by committee. A board (particularly one composed of high profile individuals) will also have more difficulty operating in a confidential manner than would a single director.

As described by my last post, the British have developed an effective system of ethics enforcement with a single individual serving as the Parliamentary Commissioner. One of the key features of the British system is the fact that the Parliamentary Commissioner is appointed by resolution of the House of Commons for a five-year non-renewable term, and similarly can only be removed by vote of the House itself. This gives the Commissioner considerable independence, and, since he can only serve a single term, less incentive to curry favor with the powers that be.

Of course, it is essential that such a position be filled by someone who is not only capable and honest, but who has a judicious temperament and a firm understanding of the proper role of his or her office. The British have been able to find well-suited persons, such as Sir Philip Mawer, to fill the role of Parliamentary Commissioner. Surely the House of Representatives could find a qualified and honorable individual, unconsumed by ambition, to serve as the director of the OCE.

The Parliamentary Commissioner for Standards

       As it takes up the question of how to structure an independent ethics enforcement office, the House of Representatives would do well to consider the experience of the British Parliament.  In 1995, the House of Commons established the Parliamentary Commissioner for Standards, an independent official appointed by Parliament to handle ethics matters.  Josh Chafetz has argued in a recent article that the Parliamentary Commissioner represents a promising model for congressional ethics reform.    

            The Parliamentary Commissioner’s principal duties are: (1) to maintain the “register of interests” that identifies certain significant financial interests (eg. paid employment, directorships, shareholdings, gifts, hospitality, land and property) of Members of Parliament and others which could potentially influence their parliamentary activities; (2) to provide confidential advice to MPs and others regarding the registration requirement; (3) to advise the Committee on Standards and Privileges (the British counterpart of the House Ethics Committee) on interpretation of the code of conduct; (4) to monitor the operation of the code of conduct and the register and to make any needed recommendations for improvement; and (5) to receive and, if appropriate, to investigate complaints from MPs or members of the public regarding failure to register interests, violations of the code of conduct or other inappropriate activity by MPs in their public life. 

            The last function is the most important.  The Commissioner receives complaints filed by members of the public, but does not accept anonymous complaints or unsubstantiated allegations.  If the Commissioner decides that the complaint lacks merit, he has the discretion to reject it without taking further action.  (The Commissioner has also established procedures for dealing with frivolous or vexatious complaints).  

If, on the other hand, the Commissioner is satisfied that the allegations have sufficient substance to justify a preliminary inquiry, he will ask the MP in question to respond.  Following receipt of this response, the Commissioner may dismiss the complaint, reach a settlement with the MP (if the Commissioner finds that the infraction was minor or unintentional), or proceed to conduct a full investigation.  If a full investigation is warranted, the Commissioner will ultimately report to the Committee on Standards and Privileges (the equivalent of the House Ethics Committee) with his findings and recommendations.  The Committee may then conduct further inquiry, and will ultimately publish its own report along with the report received from the Commissioner.   

As suggested by Josh Chafetz, the Parliamentary Commissioner model appears to be working successfully in Britain.  I would add that I was favorably impressed with the operations of the Parliamentary Commissioner’s office when, on a recent trip to London, I had the pleasure of meeting with Sir Philip Mawer, who served as Parliamentary Commissioner until the end of 2007, and his staff.  Whether this is the right model for the House of Representatives is a matter for debate, but in future posts I will discuss some significant differences between the House’s proposed Office of Congressional Ethics and the Parliamentary Commissioner.

Office of Congressional Ethics Should Not Need Subpoena Power

The second criticism of the (nearly) proposed Office of Congressional Ethics is that it will lack the power to subpoena witnesses and documents.  This criticism, it seems to me, is misplaced.  As a practical matter, the OCE should have adequate power to conduct preliminary investigations of ethical violations without compulsory process. 

            Presumably much of the information that OCE will need to review in any preliminary investigation will be in the direct control of the Member of Congress who is suspected of wrongdoing.  OCE should be able to obtain this information, in most cases, simply by request to the Member.  If the Member refuses, OCE could draw negative inferences against the Member and report the refusal to the House Ethics Committee.  This prospect (as well as the potential for adverse publicity if the refusal becomes public) will likely be sufficient to induce most Members to cooperate.

             Another category of information will be in the hands of persons closely associated with the Member, such as former staffers, political allies and contributors, and lobbyists who deal with the Member frequently.  Again, however, the OCE should be able to use its leverage with the Member to obtain the needed information in most cases.   

            Of course, there will be instances in which the OCE will be unable to obtain information because of the absence of subpoena power.  In these situations OCE will have to decide whether the information in question is absolutely critical to its ability to conduct an appropriate preliminary investigation.  If so, OCE will be able to request that the House Ethics Committee use its subpoena power to compel the production of the information in question.  Requiring OCE to take this step should not be overly burdensome.  On the other hand, requiring OCE to justify its requests for compulsory process will substantially reduce the risk of its becoming an out of control “independent counsel” type of entity.   So long as OCE is able to maintain credibility as a serious and impartial ethics watchdog, it should be to get the information it needs without subpoena power.

The Office of Congressional Ethics

Details are emerging regarding the long-awaited proposal of the House Ethics Reform Task Force, which was charged with making recommendations to the House regarding the establishment of an independent ethics office.  The proposal (which evidently has not been approved by the Republican members) will recommend the establishment of an “Office of Congressional Ethics,” which would conduct preliminary reviews of ethical violations and report its findings to the House Ethics Committee.  The proposal is drawing criticism on two grounds: (1) the OCE would not hear complaints from outside groups, but would only self-initiate investigations and (2) the OCE would not have the power to subpoena witnesses or compel the production of documents.   Today I will discuss the first criticism. 

            The reasons for prohibiting the filing of outside complaints are somewhat hard to fathom.  As a practical matter, the OCE will have to get information about potential violations from somewhere, and presumably it will not refuse to consider information brought to its attention by outside parties.  Indeed, Common Cause is supporting the proposal on the theory that it will be able to approach OCE officials informally with complaints.   

            So what is the difference between an informal complaint process and a formal one?  Perhaps there is a feeling that allowing formal complaints would require the OCE to provide some sort of formal response (ie, accept the complaint or dismiss it) and would generate an expectation that OCE would take action on those complaints that were not rejected.  However, the OCE could be permitted to disregard complaints that, on their face, failed to allege a cognizable violation of the rules and/or lacked a substantial evidentiary basis. 

            A formal system, moreover, has some advantages over an informal one.  The complainant can be required to satisfy standards of pleading, such as a requirement that the complaint allege facts sufficient to establish a violation and provide some evidentiary substantiation for those allegations.   A formal complaint would enable the OCE to focus on whether the alleged facts, if proved, would violate an ethical rule and permit it to narrow the issues before commencing a preliminary investigation.   

To further ensure that complaints are reliable, the privilege of filing could be limited to members of an “ethics bar” that OCE would establish.  Complainants and counsel who file unsubstantiated allegations or otherwise fail to meet standards set by OCE could be suspended or disqualified from future filings.   

On the other hand, if the OCE is not permitted to consider outside complaints, it is difficult to see how it can achieve the goal of strengthening public confidence in the ethics process.  Critics will justifiably note that this sends a message will discourage witnesses from coming forward with information that might be damaging to a Member of Congress.  If OCE only hears complaints from other Members of Congress, why should an ordinary witness, whether a congressional staffer, an executive official or a private citizen, feel that he or she will be taken seriously by OCE?  This is the same fundamental problem that has plagued the House Ethics Committee for the past decade, and merely outsourcing the ethics function will not make the problem go away. 

In short, the absence of a procedure for filing outside complaints would be a serious weakness in any proposal to establish an OCE.  Unless OCE can consider such complaints or develop an alternative mechanism for bringing information forward from ordinary witnesses, it may be perceived as little more than a sham for continuing a discredited ethics system.

More on Scaglia

Roll Call’s Paul Singer has another interesting article today on Phil Scaglia, who serves as Representative Cleaver’s chief of staff while operating a lobbying business in his spare time.  The article reveals that Scaglia’s business also received payments from the Cleaver campaign and that one of Scaglia’s private clients both rented office space to the campaign and made an in-kind contribution to the campaign.  More importantly, the article indicates that the “approval” that Scaglia received from the House Ethics Committee for his various activities was only verbal. 

 The fact that Scaglia performed paid campaign work is not, in and of itself, a problem under the ethics rules.  The House Ethics Committee states that “[o]nce House employees have completed their official duties, they are free to engage in campaign activities on their own time, as volunteers or for pay, as long as they do not do so in congressional offices or facilities, or otherwise use official resources.”  Unlike conducting a private lobbying business, working on the campaign of one’s employing Member does not present a conflict of interest. 

However, it is improper for congressional staff to use for campaign purposes time that should be spent on congressional duties.  Thus the House Ethics Committee advises that “[e]mployees who do campaign work while remaining on the House payroll should keep careful records of the time they spend on official activities and, separately, on campaign activities, and demonstrate that campaign work was not done on official time.”  (Whether employees generally follow this admonition, however, is another matter). 

In Scaglia’s case, this would seem to be a particular concern because he is both operating a private business and acting as Cleaver’s campaign manager, in addition to having a full-time congressional job.  The article suggests that Scaglia may have earned more than $100,000 from his campaign work alone last year.  Perhaps he just doesn’t sleep, but there is a reasonable basis to wonder whether the taxpayers are getting short-changed in this arrangement.

With regard to the campaign’s dealings with one of Scaglia’s clients, it is not clear that this raises any concerns beyond those identified in my prior posts on his lobbying business. The fact that Scaglia’s client has a (fairly minor) business relationship with Cleaver’s campaign could pose a conflict of interest with regard to Scaglia’s campaign duties, but doesn’t directly implicate his congressional duties. Nor is the fact that the client contributed to Cleaver’s campaign necessarily a problem. Of course, if the client is lobbying Cleaver on any issue (even if Scaglia is not personally involved), this raises the conflict of interest concerns that I discussed in earlier posts.

Although Cleaver’s spokesman had previously claimed that Scaglia’s business arrangements had been “cleared” by the House Ethics Committee, the latest article notes that there is no written opinion from the committee. That makes the spokesman’s claim virtually meaningless. Although the committee staff can provide informal verbal guidance, only written opinions are actually binding on the committee. In the absence of anything in writing, it is impossible to know what was disclosed to committee staff and therefore what, if anything, the staff “cleared.”

Bathroom Break

Today’s Roll Call editorializes that the Senate ethics investigation of Senator Larry Craig “should be dropped forthwith and the resources of the committee should be devoted to serious matters, notably charges that Sen. Ted Stevens (R-Alaska) had his home rebuilt by an oil executive who has admitted bribing elected officials.”  The grounds cited by the editors are as follows: (1) Senator Craig’s alleged conduct of soliciting sex in an airport bathroom, however embarrassing and unseemly, did not violate any Senate rule; (2) Senate rules and previous ethics cases have been limited to matters involving official misconduct of some kind (eg, bribery, acceptance of improper gifts, conflict of interest, financial disclosure violations); and (3) applying Senate discipline to Senator Craig for conduct unrelated to his official duties would amount to an ex post facto law. 

While the wisdom of investigating the Craig matter can be debated, it incorrect to suggest, as the Roll Call editors do, that such an investigation would be illegitimate or beyond the proper jurisdiction of the Senate Ethics Committee.  The Constitution authorizes each House to “punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”  As Justice Story explains in his classic 1833 treatise on the Constitution, it would be difficult to draw any limitation on the disciplinary power based on “the time, place or nature of the offence.”  He notes it is settled in the Senate that discipline may be imposed for “any misdemeanor” (meaning misbehavior) “inconsistent with the trust and duty of a senator,” regardless of whether the misconduct violates a statute, was committed in an official capacity, or took place in Congress or during session. 

Moreover, the Senate Ethics Manual explains that “[t]he Senate has disciplined Members for conduct it has deemed unethical or improper, regardless of whether it violated any particular law or Senate rule or regulation.”  Nor does the misbehavior have to involve “official conduct in some fashion,” as the Roll Call editorial contends.  The Senate Ethics Manual quotes the following from the Senate Select Committee to Study the Censure Charges (against Senator Joseph McCarthy): “’It seems clear that if a Senator should be guilty of reprehensible conduct unconnected with his official duties and position, but which conduct brings the Senate into disrepute, the Senate has the power to censure.’”

Indeed, Roll Call’s own ethics columnist has written, in connection with Senator David Vitter’s alleged contacts with the “D.C. Madam,” that the Senate Ethics Committee could exercise jurisdiction over that matter, despite the fact that these contacts took place before he joined the Senate.  If this is true, it is difficult to see how Senator Craig’s alleged conduct would not fall within the Committee’s jurisdiction.

(It should also be noted that while Senator Craig’s alleged bathroom conduct was unrelated to his official duties, the same cannot necessarily be said about his subsequent actions.These include pleading guilty to the disorderly conduct charge without informing the Senate, making public statements about his conduct and announcing an intention to resign which he later disavowed.)

Admittedly the broad and subjective standards applicable to congressional ethics have a great potential for inconsistent application and in some cases may result in penalizing conduct that could not reasonably have been known to violate Senate (or House) norms at the time it occurred.Such, however, is a recognized consequence of the self-disciplinary regime established by the Constitution and congressional precedent.As the Supreme Court has noted, “the process of disciplining a Member of Congress . . . is not surrounded with the panoply of protective shields that are present in a criminal case.An accused Member is judged by no specifically articulated standards, and is at the mercy of an almost unbridled discretion of the charging body. . .”

In any event, Senator Craig would seem to have little reason to complain about unfair or retroactive application of the Senate ethics process.Is it really so surprising that soliciting sex in a public restroom might be considered the sort of thing that could bring the Senate into disrepute?

Compare Senator Craig’s case to that of Representative Bob Filner, who is currently being investigated by the House Ethics Committee.Like Senator Craig, Representative Filner was at the airport, but rather than looking for love, Representative Filner was just looking for his luggage.When it failed to show up, Representative Filner apparently got upset, and allegedly pushed an airport employee and attempted to enter a restricted baggage area.The fact that this conduct had nothing to do with his official duties and was, at worst, a misdemeanor has not prevented the House Ethics Committee from opening an investigation of Representative Filner.

Perhaps Roll Call believes that sodomy in an airport bathroom is less reprehensible than throwing a temper tantrum over lost luggage.Fair enough.But it should recognize that this is a subjective and value-laden judgment on its part, not a distinction of a legal or constitutional dimension.

If Roll Call is truly concerned about unfair and ex post facto applications of the congressional ethics rules, it should study the House Ethics Committee’s report on the Mark Foley matter.As I will explain in a later post, this report applied standards to members and staff that could not possibly have been envisioned at the time that the alleged conduct took place.Yet this report was widely condemned, not for being too harsh, but for being too lenient.

Finally, I would note that Roll Call’s reference to Senator Stevens is simply a red herring.There are many potential ethics investigations that the House and Senate Ethics Committee have deferred on the theory (some might call it a pretext) that such investigations could interfere with criminal investigations being conducted by the Department of Justice.Whether this is a valid theory, as applied to Senator Stevens or anyone else, has nothing to do with whether there should be an investigation of Senator Craig. The Senate Ethics Committee has, or can easily acquire, the resources to investigate both Senators Craig and Stevens, should it so choose.



TCS Earmark Investigation: On the Road to Nowhere?

         Taxpayers for Common Sense (TCS) has written a letter to the House Ethics Committee, requesting an investigation of a $10 million earmark for the Coconut Road project in Lee County, Florida.  As explained in their letter, the earmark was included in the 2005 Transportation Bill, but the language that passed the House and Senate merely stated that the money was for “Widening and Improvements for I-75 in Collier and Lee County.”  Between the time that the conference report was approved and the time that the bill was sent to the President, the earmark language was changed to “Coconut Rd. Interchange I-75/Lee County.” The letter references media reports that the language was changed by the Enrolling Clerk at the instruction of staff for then-House Transportation Committee Chairman Don Young.  It also suggests that the language change benefited Florida real estate developers who hosted a fundraiser for Young earlier in 2005, including one who owned 4,000 acres adjacent to Coconut Road.

            This request potentially raises two separate issues.  The first is how the earmark language came to be changed (including when the change was made, by whom, who authorized or directed it, and who was aware of it) and whether the change violated the rules and/or norms of the House.  The second is whether the earmark itself was motivated by improper favoritism or outright corruption.  Formally, the TCP letter only requests an investigation of the first issue, although its letter implicitly raises the second as well.

I question whether the first issue is best addressed by the House Ethics Committee. Certainly there is a strong argument that the Committee’s investigative jurisdiction would extend to this issue, since the House’s Code of Official Conduct (over which the Committee has jurisdiction) mandates that Members, officers and employees adhere to the “letter and spirit” of the House Rules and, as TCS notes, the rules as interpreted by House precedent appear to forbid any change to the language, however unimportant, in the text of a bill to which the House has agreed. Moreover, the Committee’s jurisdiction could also be founded on the broad requirement that Members, officers and employees conduct themselves in a manner which reflects creditably on the House.

Nonetheless, it is at least unusual, if not unheard of, for the Ethics Committee to investigate alleged violations of parliamentary rules, practice or precedent. For one thing interpreting such rules, practices or precedent might encroach upon the jurisdiction of others, such as the Speaker, the Rules Committee or the Parliamentarian. Thus, for example, when the Ethics Committee investigated the circumstances surrounding attempts to influence the vote of former Representative Nick Smith on the 2003 Medicare Prescription Drug Bill, it confined its investigation to allegations of bribery and improper influence, and did not attempt to investigate the parliamentary device of the Chair holding the vote open beyond the normal time in order to achieve a particular result (although the Investigative Subcommittee did express some disapproval of the tactic in a footnote).

Similarly, when questions were raised in this Congress about whether a vote on the 2008 Agriculture Appropriations Bill had been properly conducted, the matter was not referred to the Ethics Committee. Instead, the House Leadership established a special investigative panel to look into the matter. This precedent, which is specifically cited in the TCS letter, would appear to provide a good model for dealing with the first issue raised by the letter. Indeed, serious consideration should be given to broadening the mandate of the special panel to encompass the Coconut Road issue.

As a practical matter, it seems unlikely that the Ethics Committee can or will act upon the TCS letter. As pointed out by Roll Call, House Rules do not permit the Committee to act upon complaints from outside parties such as TCS. Technically, the Committee could choose to act on its own initiative, but it seems doubtful that it will do so, particularly in light of the many other matters that are overloading the Committee. In addition, if the Committee were to investigate the second issue raised by the TCS letter, ie, the suggestion of improper favoritism or corruption, it might have to investigate dozens, perhaps hundreds, of other earmarks with similar indicia of impropriety.

The question of how the Coconut Road earmark language was changed is a serious issue, which should be the subject of a thorough review and a public report. It is doubtful, however, that the Ethics Committee will be the forum to address this issue.

Is this Really Legal? (Part 2)

           As noted in my prior post, Representative Cleaver’s office defends Scaglia’s lobbying business on the grounds that “he does not contract with, or lobby on behalf of, a client on federal matters.”    Scaglia himself told a Kansas City newspaper that he lobbies only on local issues. 

            This is fortunate because it is a crime for a federal employee to represent the interests of others in their dealings with the United States (18 USC § 205).  Thus, for example, it would be a criminal offense for a low-level employee in one federal agency to assist a friend or relative (even on an uncompensated basis) by negotiating a contract with a completely unrelated part of the government.  The fact that a senior congressional staffer is refraining from lobbying the federal government on behalf of private clients is therefore not exactly evidence of a desire to avoid any appearance of impropriety. 

            In order to avoid violating 18 USC § 205, it is not enough that Scaglia confine his lobbying to local issues.  He has to be exceedingly careful that his clients do not present him or his work product to any federal agency or entity.  He also must be careful that none of the fees that he receives from his clients are themselves derived from federal lobbying because, another statutory provision, 18 USC § 203, prohibits any federal employee from accepting compensation from federal representational activities conducted either by the employee or someone else.  This could be a particular problem to the extent that Scaglia represents clients, such as the Overton Group, which themselves engage in lobbying activities. 

            Even if Scaglia has been successful in structuring his activities so as to avoid violating any statutory prohibition, this does not mean that his outside employment is consistent with the ethical standards mandated by House Rules.  As the House Ethics Manual states, “[i]n addition to statutory restraints limiting particular types and amounts of outside income, general ethical standards and rules restrict any outside activities that are inconsistent with congressional responsibilities.”  The Manual also notes that outside employment limitations are designed to “avoid any possible conflict between the narrow interests of private employers and the broader interests of the general public.”  Among the reasons for the outside employment limitations are the concerns that a Member or employee receiving from a private company would be vulnerable to overt attempts to curry favor or “subtle distortions” of judgment on particular issues, the “time conflict” between congressional duties and the demands of outside employment, and the appearance of impropriety which can result from such private employment. 

            Judged by these standards, it is difficult to see how Scaglia’s lobbying practice could  pass muster.   At the outset, if as indicated by the articles Scaglia functions as Cleaver’s chief of staff, the fact that he is paid less than the statutory minimum does not in any way reduce the potential for an actual or apparent conflict of interest.  The salary cutoff is intended as a rough means of identifying the most influential congressional staffers, but no one on the Hill thinks that salary and influence are the same.  As Cleaver’s chief of staff, Scaglia should be assumed to have considerable influence over the congressman’s activities and thus his personal financial interests pose a greater risk of conflict of interest than would those of a more junior staffer.  

            There are at least two types of potential conflicts from Scaglia’s lobbying activities.  The first is that his clients will have an advantage, or be perceived to have an advantage, should they seek support or favors from Representative Cleaver or his staff.  The fact that Scaglia does not lobby on federal issues does not mean that his clients have not lobbied Cleaver, or will not seek to lobby him in the future.  It does not mean that the Overton Group, or the Overton Group’s clients, have not or will not engage in such lobbying.  Even if Scaglia were to recuse himself in such situations (which one would certainly hope and expect that he would), the fact of his financial relationship could very well lead these clients to expect special treatment from Cleaver or his staff, or create the appearance that they enjoyed undue influence with this congressional office. 

            The second type of potential conflict relates to the state legislators and other state or local officials that Scaglia lobbies on behalf of his private clients.  Many of these officials certainly deal with Cleaver’s office on a regular basis, seeking federal support on various state and local matters.  Common sense suggests that these officials have an incentive to assist Scaglia’s clients in the hope or expectation that this will benefit them when they are dealing with Cleaver’s office.  At a minimum, the arrangement creates the type of appearance
of impropriety that the ethics rules were designed to prevent. 

As the Roll Call article indicates, an internet search will turn up a record of a meeting Scaglia attended for one of his clients: 

According to the minutes of a November 2005 meeting of the city council of Sugar Creek, Mo., Mayor Stan Salva opened the meeting with a discussion of Cleaver’s willingness to help the town obtain funding for an expressway.

Later in the meeting, according to the minutes, “Phil Scaglia of American Traffic Solutions” responded to questions about the town’s plan to install red-light enforcement cameras. American Traffic Solutions makes the cameras, and is listed as one of Scaglia’s clients.

This illustrates the problem.  The very people Scaglia is lobbying on behalf of a private client are also seeking the support of his boss for funding of an expressway.  It is difficult to imagine how the conflict of interest could be any more apparent.  No matter how diligent Scaglia is in attempting to separate his lobbying and congressional work, any reasonable person would expect that his congressional position gives him an advantage in lobbying for his private clients.


            According to Cleaver’s spokesman, Scaglia’s lobbying work has been “cleared” by the House Ethics Committee.  If so, there is a written opinion that Cleaver’s office can release to demonstrate this clearance.  It would be interesting to know what it says.

Is this Really Legal?

This is the sort of thing that breeds cynicism about “congressional ethics.”  Roll Call reported this week that a high-ranking staffer for Representative Emmanuel Cleaver (D-Mo.) is a lobbyist “on the side.”  The staffer, Phil Scaglia, who made nearly $100,000 last year, is Cleaver’s highest paid staffer, and functions essentially as his chief of staff.  Although he evidently has a full-time congressional position, Scaglia also represents private clients, such as the American Diabetes Association, American Traffic Solutions and L-S Commercial Real Estate, as a paid lobbyist in Missouri.  He also represents an entity called the Overton Group, Inc., which is itself run by a lobbyist named Glen Overton, who represents major clients like the Corrections Corporation of America and Great Plains Energy.

 Both statute and House rules sharply limit the amount of outside income that Members, officers and certain senior staffers can earn, and prohibit them from receiving any compensation from the performance of most professional services.  As the House Ethics Manual explains, these restrictions were enacted in order to prevent outside compensation from being used a subterfuge for the reemergence of “honoraria” and  “because these professional activities were believed to pose a particular risk of conflict of interest.”  The House Ethics Committee has construed the ban on professional services broadly to cover generally activities such as law practice, insurance, accounting, real estate, consulting and even medicine.  The practice of lobbying, which on its face seems more problematic than any of those examples, is surely also covered.

 Nonetheless, a spokesman for Representative Cleaver maintains that Scaglia is not subject to these rules because he does not earn enough to qualify as an employee covered by the statute and rule.  Although all House Members and officers are subject to these restrictions, only employees making over a certain amount (currently about $111,000 per year) are covered.  Thus, while most other congressional chiefs of staff would be subject to these rules (a quick check of Legistorm indicates that all of the identified chiefs of staff in the Missouri delegation earned more than the required amount), because Cleaver and Scaglia chose to set his salary at a lower rate (presumably with full knowledge of the implications for his lobbying practice), he is not.  Very clever.

 Or maybe not so clever.  Because while it is true that Scaglia earned less than the requisite annual amount for all of 2006, he was paid $28,769 for the period October 1, 2006 through December 31, 2006 (according to Legistorm).  House Rule XXV defines a covered employee as one who is paid “at a rate equal to or greater than [specified amount]” and is “so employed for more than 90 days in a calendar year.”  Scaglia’s salary for the 92 days comprising the last quarter of 2006 annualizes to more than $115,000 and therefore would seem to qualify him for the prohibition.

 It is likely, however, that a portion of Scaglia’s salary for the final quarter of 2006 was in the form of a lump sum payment, which, according to a October 15, 1999 advisory opinion of the House Ethics Committee, is not generally to be counted in an employee’s salary for purposes of the outside earned income limitation and restrictions.  Thus, assuming that a lump sum payment was properly made to Scaglia, this payment would not cause him to be subject to the rule.

Even if Cleaver and Scaglia have successfully evaded the prohibitions of the statute and rule, however, serious questions remain.  As the Committee’s advisory opinion notes, Members and staff are required “to adhere not only to the letter, but also the spirit, of the Rules of the House.”  Allowing one’s staff to engage in outside professional activities which pose a low risk of conflict of interest, like the practice of medicine, might be consistent with the spirit of the rules, but it is difficult to imagine a situation more antithetical to the spirit of the rules than for any congressional employee, even one less senior than Scaglia, to conduct a private lobbying practice.

 In my next post I will consider the contention by Representative Cleaver’s spokesman that the lobbying practice is permissible because it is limited to state and local officials.