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April 24, 2014

Posts in "Question of Ethics"

April 8, 2014

Do Campaign Finance Violations Warrant Jail Time? | A Question of Ethics

Q. I was amazed to see last month that longtime Fiesta Bowl official John Junker was sentenced to time in federal prison. He’s been a respected member of the community for decades, and I have a hard time fathoming that he would do anything that warrants time in prison. He does not seem like a criminal to me, and from what I’m told, he was accused of breaking rules about how to raise money for political campaigns. Can you really go to jail for that?

On March 13, John Junker, former executive director and CEO of the Fiesta Bowl, was sentenced to eight months in federal prison. This is someone who Sports Illustrated once named the seventh-most-powerful man in college football, and whom others have called the face of what was good about college football bowls. Junker became executive director of the Fiesta Bowl in 1990, at just 34, and helped build it into one of the premier sporting events in the country, eventually becoming the nation’s highest paid bowl executive.

Yet there he was last month in federal court in Arizona, standing before U.S. District Court Judge David Campbell, awaiting his fate.

Many in the community submitted letters urging that Junker be spared prison time. There were more than 100 such letters, including one from Jerry Colangelo, former owner of the NBA’s Phoenix Suns and MLB’s Arizona Diamondbacks, who called Junker an “important contributor and supporter of our community.” Other letters came from employees of the Society of St. Vincent de Paul, the Phoenix charity serving the poor where Junker now works.

Federal prosecutors argued, however, that prison time was warranted. “Junker’s crime is serious,” prosecutors wrote in a February court filing. “He was the leader of a multi-object conspiracy to make illegal campaign contributions, to lie to the Federal Election Commission and to defraud the United States by concealing illegal campaign contributions and lobbying expenses from the IRS.”

In 2011, Junker admitted to all of this when he pleaded guilty to one count of criminal conspiracy. Specifically, he acknowledged conspiring to solicit political campaign contributions from Fiesta Bowl employees and to later reimburse those employees in the guise of employee bonuses.

Why would someone do this? In fact, it is a classic way to try to evade laws that, at the time, prohibited corporations from making direct contributions to political campaigns. Junker stated in his plea agreement that he knew what he was doing, and that it was wrong.

“I knew … that … it was illegal for … corporations … to make donations to political campaigns,” Junker stated in the agreement, “and that it was illegal to use other people’s names to pretend that contributions being made by … corporations … were actually not being made by the … corporations.” Junker also acknowledged that he knew that, since making contributions using other people’s names was illegal, agreeing to engage in this conduct with others was also a crime.

But, he did so anyway. And, that’s presumably why he pleaded guilty to criminal conspiracy, a felony carrying a maximum of five years in prison.

His plea agreement with prosecutors provided that his prison sentence would not exceed two years. And, in the time since his 2012 plea, Junker reportedly continued to help prosecutors with their investigation, as required by his plea agreement. Prosecutors ultimately recommended a one year sentence to the court. Junker’s attorney argued in response that probation alone would suffice.

As judges often do, Campbell arrived at a result somewhere in between: eight months in prison. Campbell acknowledged that Junker has already paid a serious price for his actions, losing his job and more. But, Campbell said, Junker’s violations of law warranted a prison sentence because Junker had engaged in a conspiracy and caused his employees to commit crimes as well. As a result, even the Fiesta Bowl itself was put at risk by making false statements about campaign contributions to the government, including the IRS and the Federal Election Commission.

So, what’s the lesson here? If you ever face sentencing for a federal crime, it may help reduce your sentence that you’re a valued member of the community, that you cooperated with the government, and that others speak out on your behalf. But, it won’t necessarily keep you out of prison. A felony is a felony.

C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

April 1, 2014

Christie’s Contractors: Backers Barred From Donating Found Loophole

christie 074 030614 445x309 Christies Contractors: Backers Barred From Donating Found Loophole

(Bill Clark/CQ Roll Call File Photo)

New Jersey Gov. Chris Christie may manage to put the George Washington Bridge scandal behind him, but even if he does, his ethics troubles won’t be over.

Christie’s complicated relationship with campaign contributors and state contractors, in particular, will draw scrutiny as he continues to mull a 2016 presidential bid. Christie’s donors have a history of gravitating to secretive and little-regulated political groups to promote the GOP governor and his agenda.

These include tax-exempt organizations that spent millions on Christie’s gubernatorial election and re-election campaigns, and that operate outside the disclosure rules. Political activity by nonprofits has become commonplace these days, and Christie’s opponents run their own non-disclosing tax exempt groups.

But Christie’s big backers, who have bankrolled several pro-Christie operations, stand out because many of them are state contractors otherwise barred from contributing to his campaign. New Jersey “pay-to-play” laws, considered the strictest in the nation, bar large state contractors, utilities and financial services firms that manage state pension funds from donating to state candidates.

Yet a long list of New Jersey contractors and pension fund managers have given generously to groups that either back or are closely linked with Christie. Such contributions have repeatedly raised questions as to whether Christie supporters are skirting the state’s pay-to-play laws — a suggestion that the state Treasury Department, which enforces those statutes, has rejected.

Full story

March 5, 2014

Why Did Petri Ask to Be Investigated? | A Question of Ethics

Q. I read that Rep. Tom Petri, R-Wis., has requested the House Ethics Committee to investigate himself. I know that members call for ethics investigations from time to time, but, I don’t recall if I’ve ever heard of a member asking for an investigation of himself. As I understand it, responding to an ethics investigation can be time-consuming and costly. Why would any member wish this upon himself?

A. What you have read is correct. In a Feb. 16 letter to the House Ethics Committee, Rep. Tom Petri did indeed ask that the committee review Petri’s “ownership of stock in companies” as well as his “actions on their behalf,” both of which were the subject of news articles attached to the letter.

One such article was a Feb. 8 Gannett Washington Bureau report about an investigation into Petri’s relationship with Oshkosh Corp., a defense contractor headquartered in Petri’s congressional district in Wisconsin. According to the report, Petri lobbied the Pentagon for defense funding, and helped Oshkosh retain a $3 billion truck-manufacturing contract it had secured from the Pentagon. Meanwhile, says the report, Petri owned hundreds of thousands of dollars of Oshkosh stock, and in fact purchased additional stock during the same period in which he was advocating on Oshkosh’s behalf.

So, why would Petri ask for the Ethics Committee to investigate this? Well, that depends on whom you ask. In Petri’s letter, he says the reason for the request is “to end any questions.” “I am distressed by the innuendo in the articles,” the letter states. And, “[i]t is regrettable, but not surprising, that many are confused by the articles.” Full story

February 18, 2014

May Staffers Write for Money? | A Question of Ethics

Q. I am a staffer for a member of the House and am considering getting a second job. My wife, who is an attorney, is pregnant with our first child, and she plans to stop practicing law so that she can stay home and raise our child. I am more than happy with this arrangement, but it will definitely be a blow to our family budget, so I am looking for ways to supplement my income. One idea was to resume my career as a writer. I wrote for newspapers and magazines before working in the House, and would like to write some magazine articles on the side after the baby arrives. I would not allow the writing to interfere with my official duties in any way. I assume this is okay, but figured I would check. May I write magazine articles for money while employed by the House?

A. First of all, congratulations! Your life is about to change in more ways than one. As for your budget, I may not have good news. Unfortunately, House rules impose tight restrictions on the extent to which members and staffers may earn outside income. In fact, the work that you have in mind may be off-limits, depending on your position and the nature of the job. Full story

February 4, 2014

Why Did the Ethics Investigation of Radel End? | A Question of Ethics

Q. I have a follow-up question to your recent column about the House Ethics Committee’s investigation of Trey Radel. Radel has since resigned from the House, and the Ethics Committee announced that, as a result, it was ending its investigation. Can you help me understand this? I would think that the mere fact that Radel resigned doesn’t mean that he didn’t do anything wrong. So, why would the Ethics Committee stop investigating him?

A. The House Ethics Committee ended its investigation of Trey Radel for one reason: It no longer had jurisdiction over him. To understand why, let’s look at what led up to the decision to stop the investigation.

In December of last year, the Ethics Committee announced that it had formed an investigative subcommittee to review whether the Florida Republican had “violated the Code of Official Conduct or any law, rule, regulation, or other applicable standard of conduct in the performance of his duties or the discharge of his responsibilities, with respect to conduct forming the basis for criminal charges of possession of cocaine in the District of Columbia, to which Representative Radel pled guilty on November 20, 2013.”

In conducting its investigation, an investigative subcommittee may subpoena documents and take sworn testimony from witnesses who may have relevant information. However, committee rules require that all investigative subcommittee proceedings take place in “executive session,” which means they must remain confidential. Therefore, except where a report is issued after an investigation, little is known about the details of ethics investigations such as the one of Radel.

On Jan. 27, Radel resigned from the House. “It is my belief that professionally I cannot fully and effectively serve as a United States Representative,” he wrote in a letter read on the House floor.

Although Radel’s resignation led many to presume that the ethics investigation would end as well, others argued that it should continue, including the advocacy group Citizens for Responsibility and Ethics in Washington. “The congressman’s resignation should in no way derail the ethics investigation stemming from this incident,” CREW said in a public statement. CREW said that many questions remained unanswered, like who introduced Radel to his drug dealer and whether he shared drugs with other members or staffers.

Nevertheless, two days later, the Ethics Committee announced that the subcommittee had indeed ended the investigation. “The Investigative Subcommittee began its investigation but was unable to complete its work before Representative Radel resigned from the House on January 27, 2014,” the investigative subcommittee said. “As a consequence, the Investigative Subcommittee no longer has jurisdiction over him.”

This conclusion is not surprising. House Rules empower the Ethics Committee to investigate potential violations of members, delegates, resident commissioners, officers and employees of the House. Conversely, the committee has often recognized that members and staffers who “are no longer serving in or employed by the House … are outside the Committee’s jurisdiction pursuant to House Rule XI, clause 3(a)(2).” Thus, when a member that is the subject of an investigation resigns, the general practice of the Ethics Committee has been to discontinue that investigation.

The few exceptions to this practice have occurred where there was reason to believe that the conduct of other members and staffers was at issue. CREW has argued that’s the case here by suggesting that Radel’s dealings with drugs might have involved other members and staffers. However, while the confidentiality requirements make it impossible to know what the subcommittee discovered during its investigation, there has been no public information reported linking other members or staffers to Radel’s drug use.

In 2006, after Mark Foley resigned amid allegations of improper conduct with House pages, the Ethics Committee formed an investigative subcommittee to “conduct a full and complete inquiry and investigation into any conduct of House Members, officers, and staff related to information concerning improper conduct involving Members and current and former House pages.” There, however, the committee already had information raising questions about how specific members and staffers responded after learning of Foley’s misconduct.

Here, by contrast, it appears the committee had no such information, and concluded there was nothing left that it could investigate. In short, since Radel is no longer a member of the House, the Ethics Committee lacks jurisdiction over him.

C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

January 22, 2014

Why Is Trey Radel Being Investigated? | A Question of Ethics

Q. I am a House staffer with a question about the House Ethics investigation of Rep. Trey Radel, R-Fla. I know Radel pled guilty to a drug charge last year, but I’m pretty sure that the charge was just a misdemeanor. Also, I know that the House Ethics Committee automatically investigates any Member who commits a crime, but I thought that applied just to felonies, not misdemeanors. If that’s right, why is the Ethics Committee investigating Radel?

A. This is a good question because it illuminates some of the different ways in which an investigation by the House Ethics Committee can begin, whether by House resolution, the committee’s own initiative, or even by the filing of a complaint by another member.

Let’s start with some factual background. On Nov. 20, Radel pleaded guilty in District of Columbia Superior Court to a misdemeanor charge of possession of cocaine. According to court documents filed with his plea, Radel admitted to using cocaine several times and was caught attempting to purchase it from an undercover agent in Washington, D.C., in late October.

Under House rules, the charges against Radel meant that within 30 days, the House Ethics Committee was required to do one of two things. It either had to start an investigation or submit a report to the House explaining why it had decided against an investigation. These requirements were first imposed on the committee by H Res 451, which the House adopted in June 2007, the day after then-Rep. William Jefferson was indicted on 16 criminal charges in federal court related to alleged bribery. The requirements apply whenever a member is indicted or otherwise formally charged with criminal conduct in a federal or state court, regardless of the level of charge.

In several instances since the resolution was adopted, members have been charged with crimes that the committee concluded did not warrant an investigation. For example, in October last year, several members were arrested and charged with blocking passage after participating in a protest outside the Capitol. Less than 30 days later, the House Ethics Committee issued a report to the House stating that an investigation was not necessary based on the “scope and nature” of the members’ conduct. The report noted that the charges against the members were dropped after forfeiture of a $50 collateral payment.

In Radel’s case, the day after his guilty plea, before the Ethics Committee took any action, an advocacy group filed a complaint with the Office of Congressional Ethics. This is another avenue that can lead to an investigation by the committee. The House created the OCE in 2008 to screen allegations of misconduct by members. Historically, only other members could file complaints with the Ethics Committee, but the OCE was created in part to provide the general public with a vehicle to initiate allegations of unethical conduct by members and staffers. The OCE has no authority to impose sanctions but instead reviews allegations and determines which warrant further review by the Ethics Committee.

On Dec. 16, the Ethics Committee announced that it was commencing an investigation of Radel to determine whether he “violated the Code of Official Conduct or any law, rule, regulation, or other applicable standard of conduct in the performance of his duties or the discharge of his responsibilities, with respect to conduct forming the basis for criminal charges of possession of cocaine in the District of Columbia, to which Representative Radel pled guilty on November 20, 2013.” Thus, the OCE’s review was no longer needed.

Incidentally, even in the absence of H Res 451, the Ethics Committee still could have begun an investigation. House rules allow the Ethics Committee to exercise its investigative authority “on its own initiative.” To do so, the committee “may consider any information in its possession indicating that a Member, officer, or employee may have committed a violation of the Code of Official Conduct or any law, rule, regulation, or other standard of conduct applicable to the conduct of such Member, officer, or employee in the performance of the duties or the discharge of the responsibilities of such individual.”

On the other hand, if the charge against Radel had been a felony — as opposed to a misdemeanor — you are correct that the rules would have required the committee to investigate, regardless of its desire to do so. In short, House rules require an Ethics investigation after a member is convicted and sentenced for a felony but leave it to the committee’s discretion as to whether to investigate members’ other involvement with the criminal justice system. Here, the Ethics Committee decided Radel’s circumstances warranted probing.

January 7, 2014

May Campaign Funds Be Used for Holiday Gifts? | A Question of Ethics

Q. Over the holidays, I saw news reports that some members of the House use funds from their campaigns to purchase holiday gifts for constituents. As a concerned citizen, this practice surprised me. I would think that money donated to campaigns should be used solely for campaign purposes. Is it really okay to use campaign funds to buy holiday gifts?

A. Great question. Answering it actually requires considering two different bodies of law: federal election law and House ethics rules. Broadly, the use of campaign funds is governed by the Federal Election Campaign Act and regulations administered by the Federal Election Commission. However, active members of the House must also abide by House ethics rules administered by the House Ethics Committee.

In most cases, the Ethics Committee defers to the FEC’s determinations on permissible uses of campaign funds. But, at least in theory, there may be instances where the Ethics Committee prohibits uses that the FEC allows. Thus, the Ethics Committee has cautioned: “A Member’s use of campaign funds for federal office is permissible only if it complies with the provisions of both the House Rules” and FEC regulations.

So, let’s start with the FEC regulations. In principle, you are correct: The regulations require that campaign funds be used solely for campaign or other official purposes. Campaign funds, the regulations state, “shall not be converted by any person to personal use.” Violations of this restriction can result in stiff civil penalties and fines from the FEC. In some circumstances, where criminal conduct is involved, misusing campaign funds can result in even harsher penalties from the Department of Justice. Former Rep. Jesse L. Jackson Jr., for example, is currently serving a 30-month prison sentence in part for using campaign funds for personal use.

The tricky question is what counts as “personal use.” The regulations define personal use as when funds are used to fulfill a commitment, obligation or expense that would exist irrespective of the member’s campaign or duties as a holder of federal office. This is sometimes referred to as the “irrespective test.” The FEC lists uses that are presumed to fail the irrespective test and are therefore typically considered “personal uses,” including, for example, a home mortgage, clothing, country club fees and tuition payment.

As you point out, recent news stories have described House members using campaign funds to buy holiday gifts. Campaigns must file reports describing the various uses of campaign funds, and some members’ campaign reports have historically described purchases of ornaments, cards and other items from the House gift shop. In many cases, the reports specify that the items are for constituents.

So are these gifts allowed? Provided certain conditions are met, yes. FEC regulations explicitly exclude “gifts” from the definition of personal use. “Gifts of nominal value … made on a special occasion such as a holiday, graduation, marriage, retirement, or death are not personal use, unless made to a member of the candidate’s family.” In promulgating this regulation, the FEC explained that candidates and officeholders frequently send small gifts to constituents and supporters on special occasions as gestures of sympathy or goodwill, and that expenses for such gifts “would not exist irrespective of the candidate’s or officeholder’s status.” The FEC cautioned, however, that the gifts must be of nominal value. Moreover, they may not be to family members because members would presumably make gifts to family members irrespective of their campaign or federal office (one would hope).

As for the House Ethics Committee, it has issued guidance which cites approvingly the FEC regulations that allow members to use campaign funds to buy gifts of nominal value on special occasions. “Such gifts,” the Ethics Committee guidance states, “may include the relatively inexpensive House or Capitol souvenir items sold by the House gift store or the U.S. Capitol Historical Society, and thus a Member may use campaign funds to purchase such nominal-value gifts for the Member’s supporters or contributors.” However, the committee’s guidance cautions that use of campaign funds for a gift is permissible only if it “serves a bona fide campaign or political purpose” and, of course, that the recipient may not be a family member.

So, to sum up, you are right that the law prohibits personal use of campaign funds. Holiday gifts of nominal value to constituents just don’t count as personal use.

December 10, 2013

The Year in Congressional Ethics | A Question of Ethics

A famous Tacitus quote about government corruption raises a chicken and egg question. One common translation is: “The more corrupt the state, the more numerous the laws.” But it is also sometimes cited as, “The more numerous the laws, the more corrupt the state.”

So, which is it? Does corruption beget laws? Or, do laws beget corruption?

Perhaps both are right. That might explain why, in an era of expanding legislation and regulation, government ethics always seems to be a hot issue. When this column began after the ethics boom of late 2006, government corruption dominated headlines and exit polls. Seven years later, the frenzy over government corruption may have calmed a bit. But, those years have added thousands of new laws and regulations to a sum that was already too large to count. If Tacitus is right, the ever-growing number of laws in this country could mean that government corruption is ever-growing, too, notwithstanding reformists’ efforts to nip around its edges.

A look back at the year in congressional ethics provides no shortage of support for Tacitus. I asked several top practitioners of political law to name the government ethics story of the year, and there are many.

Ken Gross, a former associate general counsel of the Federal Election Commission, now of Skadden, cited Jesse L. Jackson Jr. as the saddest scandal of the year. In October, the former congressman was sentenced to more than two years in prison after pleading guilty to crimes that the judge described as using campaign funds as a “personal piggy bank.” His wife received a one-year sentence for her own role in the scandal. “Rising to the level of congressman and carrying the name of a famous civil rights leader proved to be too much,” Gross said, “ending in an inconceivable crash landing.”

Robert Walker, former chief counsel of the Senate Ethics Committee and now of Wiley Rein, added the Rick Renzi scandal to the year’s list of biggest stories. Over the summer, the former representative was convicted of 17 violations of federal criminal law, including extortion, bribery, insurance fraud, money laundering and racketeering. Three months later, he was sentenced to three years in prison. After the sentencing, prosecutor Mythili Raman said that Renzi “fleeced his own insurance company to fund his run for Congress, and then exploited his position for personal gain.” “Oh, how the — kind of — mighty are fallen,” Walker said.

Walker also cited another story for its significance “from a process point of view” — the confirmation of the Office of Congressional Ethics “as a fixture” in the ethics process. The OCE was created in 2008 to review allegations of misconduct by House employees to determine if they warrant further review by the House Ethics Committee. In the OCE’s early years, its relationship with the House Ethics Committee was not always smooth. Now, said Walker, “the OCE and the House Ethics Committee have arrived at a modus vivendi allowing them to exercise their overlapping — some might still say redundant — investigative authorities.”

Less than 60 years ago, there were no government entities specifically charged with considering allegations of misconduct by House employees. Today there are two.

Stefan Passantino of McKenna Long & Aldridge, who runs the Pay to Play Law Blog, agrees that improved process is the government ethics story of the year. In addition to the “growing acceptance by all of the role the OCE plays in the process,” Passantino cited the “workmanlike resolution of matters by the two ethics committees.”

But another story late in the year may put some of those developments in doubt. Last month, Dan Schwager left his post as chief counsel of the House Ethics Committee. Described by Walker as “an experienced professional and former prosecutor,” Schwager was widely respected in the field. If the lack of major public controversy is one measure of success of his job, Schwager’s two-and-a-half-year tenure was a successful one. His departure, Walker said, “could wind up being quite significant, depending on the direction the committee takes in hiring his successor.”

Indeed, as we look ahead to 2014, the filling of the chief counsel vacancy in the House Ethics Committee will be the story to watch. Yet, regardless who takes the job, government ethics is sure to remain as relevant as ever. Tacitus said so, however you translate him.

Correction: Dec. 11, 11:30 a.m.

A previous version of this article misstated the year of the ethics boom. It was 2006, not 1996.

November 12, 2013

May Staffers Participate in IPOs? | A Question of Ethics

Q. I am a House staffer and have been offered a chance to participate in the initial public offering of a well-known company that is about to go public. My position as a House staffer had no role at all in the opportunity becoming available to me. In fact, the person who invited me to participate did not even know that I work for the House of Representatives. I presume this means that it is OK for me to participate. However, another staffer in our office told me I’m wrong.  I really want to do it, so please don’t tell me the rules prevent it.

A. You know the adage that it’s better to beg for forgiveness than ask for permission? In this case, ignore it. Here’s why. Full story

October 29, 2013

Are Members of the House Allowed to Hire Relatives? | A Question of Ethics

Q. I have a question about a recent “60 Minutes” segment I saw about nepotism among members of Congress. As I understand the report, it said that there are some circumstances in which nepotism is legal. This confused me. As a former House staffer, I’m pretty sure members are not allowed to hire relatives to work in their offices. What’s the deal? May members of the House hire relatives to work for them?

A. Yes and no.

You are correct that federal law prohibits members from hiring relatives to work in their House offices. But no law prevents members from employing relatives for their election campaigns. Here’s why:

Federal law broadly forbids a government official, including a member of Congress, from hiring or promoting any “relative” to any agency over which the official exercises authority or control.  Someone counts as a relative of a member under this restriction if they are a “father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.”

Ever since 1967, when the anti-nepotism statute was enacted, it has been illegal for a member to hire or promote anyone meeting this definition. Full story

October 15, 2013

Keep Working While Furloughed? | A Question of Ethics

Q. I am a staffer for a member of the House. The government shutdown has caused most members’ offices to furlough staffers, and I am one of them. Unfortunately, there are a number of things I was working on before the shutdown, and I’d like to be able to make some progress on them while on furlough. I’m not being paid either way, so I figure I might as well be productive. The problem is that I’ve been told I’m not supposed to do any work while out. Is this really prohibited?

A. Answering this question reminds me of the type of thing I might tell my young children when using reverse psychology. “Do not do any work. Whatever you do, you may not do any work.”

Believe it or not, those are essentially the marching orders for staffers who have been furloughed. A general prohibition prevents all nonessential federal workers, including nonessential House staffers, from working while on furlough.

The House Administration Committee confirmed this in guidance recently issued to members. “If I furlough an employee, can he/she still come into work?” asks one question in the guidance. The answer? “No, if you have decided that an employee is non-essential, he/she cannot perform official duties, (either at the office or at home).”

There are several reasons for this. One is an old law known as the Anti-Deficiency Act, which has its origins in 19th-century budget battles between the executive branch and Congress. Under the Constitution, no money may be drawn from the Treasury unless appropriated by Congress. This means that Congress generally has discretion over which government services to fund and how much to fund them.

During the 19th-century budget battles, executive branch departments would seek ways around the financial constraints of running out of funds appropriated to them. (Sound familiar?) One method was to allow employees to perform government services on a volunteer basis. When the volunteers later asked to be paid for their services, there would be a “deficiency” of funds. Congress would sometimes feel compelled to fill that deficiency so that the volunteers could receive retroactive payment for their services.

The Anti-Deficiency Act prohibits this practice. Specifically, it states that a federal official “may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.” Federal officials have interpreted this to mean that when there is a lapse in appropriations for government services, they may not allow those services to continue on a volunteer basis.

Note that this doesn’t mean that all government services must shut down whenever there is a lapse in appropriations. As a 1995 memorandum by the Office of Management and Budget observed, the commonly used term “government shutdown” to refer to a lapse in appropriations is in fact an “entirely inaccurate description.” A true government shutdown, the memo states, would mean no air traffic control, FBI, customs services, border control, stock markets or VA hospitals, among other vital services. A “true shut down of the federal government,” the memo says, “would impose … incalculable amounts of suffering and loss.”

Thus, even during a lapse in appropriations, such as the current one, the Anti-Deficiency Act permits the continuation of certain essential services. The House has determined that the essential services of House staffers include those that are associated with constitutional responsibilities, the protection of human life or the protection of property. Each member must determine which of his or her staffers perform such duties. All others — that is, nonessential employees — must be placed on furlough.

Under the Anti-Deficiency Act, then, furloughed staffers may not perform their official duties on a volunteer basis while on furlough. The recent guidance by the House Administration Committee explains just how broad this prohibition is. For example, a member’s office “may not communicate with a furloughed employee about official duties and the furloughed employee may not perform official duties by email or telephone.” As a way to ensure compliance, the guidance suggests that a member’s office may even require furloughed staffers to turn in their cellphones, laptops and BlackBerrys.

One wonders whether even this is enough to comply. Keep in mind that, technically speaking, violations of the Anti-Deficiency act can be considered crimes, punishable by up to two years in jail. So, what if your mind strays and you start having productive thoughts about the projects you were working on before being furloughed? It seems that if you really want to make sure you don’t break the law against working while on furlough, merely turning in your cellphone and turning off your computer won’t do the trick.

Have you considered a lobotomy?

September 12, 2013

Friend of Jesse Jackson Jr. Responds

Ned Brown, a reader of Wednesday’s A Question of Ethics post on Jesse L. Jackson Jr., sent the following response, which raises the question of why some politicians break laws governing political conduct:

I read your [column] this afternoon coincidentally after having spent 2 hrs w Jesse this morning; he’s a close friend. On one hand, he is incredibly bright and gifted. On the other, he did something incredibly stupid and selfish. I still do not fully comprehend why, beyond narcissism, which just about every politician is guilty of.

I will add this about Jesse and his situation: he is truly sorry for the shame he brought on his family, his fellow members of Congress (who he considers extended family), and damaging the image of the institution. He is very direct that he wants to serve his time in a way that will make him a better person. And upon leaving the criminal justice system, he looks forward to devoting his future years and efforts to something worthwhile. While he is ashamed of what he did, Jesse hopes his future works will also be part of defining the mosaic of Jesse Jackson Jr’s life.

September 10, 2013

What Did Jesse Jackson Jr. Do Wrong?

Wage 001 060612 600x400 What Did Jesse Jackson Jr. Do Wrong?

(Chris Maddaloni/CQ Roll Call File Photo)

Q. I am a Hill staffer with a question about the jail sentence Jesse Jackson Jr. recently received for campaign finance violations. I didn’t follow his case closely, but, from what I understand about it, the jail sentence struck me as a bit harsh. It’s not like Jackson killed anyone, or even harmed someone.  And as a Hill staffer I know that campaign finance law can be very complicated, and because of that we are always worried about the possibility of inadvertent violations. What exactly did Jackson do that resulted in him going to jail?

A: On Aug. 14, 2013, at a federal courthouse in Washington, D.C., former Rep. Jesse L. Jackson Jr., once viewed by some as a rising political star, was sentenced to two and a half years in prison for federal crimes to which he had pleaded guilty earlier this year. His wife, the mother of his two young children, was also sentenced to prison for a year for her role in the crimes. She had also pleaded guilty.

So what did Jackson do? Technically, he admitted to conspiring to commit wire and mail fraud and making false statements. In plain speak, he acknowledged defrauding his campaign of approximately $750,000. Full story

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