Congressional Accountability Project
1611 Connecticut Ave. Suite #3A
Washington, DC 20009
(202) 296-2787
fax (202) 833-2406


October 8, 1997

Honorable James Hansen, Chairman
Honorable Howard Berman, Ranking Member
House Committee on Standards of Official Conduct
HT-2, The Capitol
U. S. House of Representatives
Washington, DC 20515

Dear Representatives Hansen and Berman:

This letter constitutes a formal request to amend the Congressional Accountability Project's September 5, 1996 ethics complaint against House Transportation Committee Chairman Elmer Greinert "Bud" Shuster (R-PA). We wish to append news accounts of Chairman Shuster's dubious practice of holding joint official fact-finding and campaign fundraising activities.

This amendment is pursuant to House Rule 10, which authorizes the House Committee on Standards of Official Conduct ("Ethics Committee") to investigate "any alleged violation, by a Member, officer or employee of the House, of the Code of Official Conduct or of any law, rule, regulation or 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."

This letter also contains a formal request that the Ethics Committee prepare a new House Rule codifying House Ethics Manual warnings against linking campaign contributions with official actions.

On October 31, 1996, Roll Call revealed that several of Chairman Shuster's campaign fundraising events were closely linked -- in time, proximity, and substance -- to official fact-finding expeditions to evaluate possible federal financing of transportation projects. For example, in Frederick, Maryland:
  The Frederick News-Post described Rep. Shuster's visit to Maryland: In Texas, according to a news release from Chairman Shuster's Transportation and Infrastructure Committee, Roll Call wrote of Chairman Shuster's Texas activities that: Regarding Chairman Shuster's activities in California, the San Francisco Chronicle wrote: Roll Call wrote of Chairman Shuster's activities in California: Regarding Chairman Shuster's activities in Utah, the Salt Lake Tribune reported: Roll Call wrote of Chairman Shuster's trip to Provo: Regarding Chairman Shuster's trips to Pine Bluff, Arkansas, Roll Call wrote: During one of Chairman Shuster's fundraising trips to Arkansas, the Arkansas Democrat-Gazette noted that: Congressional fact-finding serves a legitimate governmental interest when it relates directly and solely to a Member's official duties in the Congress. Such fact-finding is in the public interest; a well-informed Member of Congress will likely make better decisions than an ill-informed Member.

However, Chairman Shuster's pattern of holding joint fundraisers and fact-finding events in Maryland, Texas, Utah, California, and Arkansas, as well as the comments of his campaign donors, call into question the legitimacy of his fact-finding. They leave the impression that Chairman Shuster requires an "entrance fee" or tribute of campaign contributions to consider or approve federal financing for transportation projects. The Ethics Committee must determine whether Chairman Shuster does require such a tribute.

Consideration for federal funding should not be "for sale" by politicians seeking fattened campaign warchests. If Chairman Shuster is trading such consideration for campaign contributions, he is misusing his chairmanship for political gain. This would likely fall within a class of dishonorable conduct prohibited by the House Code of Official Conduct. The Code states that:

But even the appearance of linkage -- without the actuality of a tribute -- is demoralizing to the public. It erodes trust in the Congress, and the federal government. As such, it is corrosive to the legislative process, and cannot be permitted by the Ethics Committee. The Ethics Committee must take official action to preserve and protect public trust in the United States Congress.

The appearance standard was perhaps best expressed in the Senate Ethics Committee's report on the Investigation of Senator Alan Cranston:

Senator Paul Douglas has pointed out, in his book Ethics in Government, that it is important for time to elapse between the gift of a campaign contribution to a Member of Congress, and any official action provided to the donor -- and that includes fact-finding. Senator Douglas's book is quoted with approval in the House Ethics Manual: The House Ethics Manual also states that: At a minimum, Chairman Shuster has run afoul of the appearance standard and the House Code of Official Conduct by linking -- in time, proximity, and substance -- official fact-finding and campaign fundraising. Currently, no House Rule codifies the House Ethics Manual's warnings against linkage between campaign contributions and official action. This is a serious omission in the House Rules. Without such a House Rule, the public is nearly bereft of protection against the corrupting power of campaign contributions upon the Congressional legislative process, other than the weakened and crumbling Federal Election Campaign Act (FECA) of 1971 and amendments.

The gravity of this omission in the House Rules is compounded by the judicial decision in the bribery case United States v. Brewster.(13) In Brewster, the D.C. Circuit Court carved out a crucial exemption in federal bribery law (18 U.S.C. §201) for campaign contributions to Members of Congress. Brewster essentially exempts "legitimate campaign contributions" -- legitimate under FECA - from prosecution under federal bribery law.

Brewster was a disaster for the integrity of the Congressional legislative process. It essentially exempted what is likely the single most important source of corruption -- large campaign contributions -- from coverage under federal bribery law.

To make matters still worse, in Brewster, the court added two necessary elements not in the federal bribery statute which are now necessary to convict Members of Congress -- and only Members of Congress -- under section 201(14). In an article in the Journal of Legislation on "Bribes, Gratuities, and the Congress," Joseph Weeks wrote:

Weeks's statement is mirrored by The U.S. Department of Justice manual on the Prosecution of Public Corruption Cases, which states: These barriers to prosecution of Members of Congress exist in spite of emphatic concern -- both from the public and the courts -- about the deleterious effects of both the appearance and the reality of linkage between campaign contributions and official action. For example, in Buckley v. Valeo, the Supreme Court noted that: Without a House Rule explicitly prohibiting linkage between campaign contributions and official action, citizens are left with only the flimsiest protections against such conduct: warnings in the House Ethics Manual, and a general rule in the House Code of Official Conduct. These feeble protections are not adequate to the task of protecting citizens and the legislative process against Members of the House of Representatives who link campaign contributions and official action.

Solutions to the problem of inadequate protection against the purchase of influence by campaign contributors are needed at two levels: a change in the federal bribery statute to once again bring campaign contributions to Members of Congress under section 201, and a new House Rule to protect citizens and our democracy against linkage between campaign contributions and official action.

We formally request that you remedy this omission in the House Rules by codifying House Ethics Manual warnings into a House Rule which clearly prohibits linkage between campaign contributing and official action, and win passage for the Rule in the House of Representatives. If you choose not to propose such a House Rule, we request that you state in writing precisely why you do wish to explicitly prohibit linkage between campaign contributions and official action in the House Rules.

Given the unusual mixture of official and campaign fundraising activities, did the financing of Chairman Shuster's trips to Maryland, Utah, California, Texas, and Arkansas violate either House Rule 45 or federal law prohibiting the use of appropriated funds for unofficial purposes?

For example, the Salt Lake Tribune reported that Rep. Shuster's travels in Utah were paid for by his campaign committee. But is it appropriate for Chairman Shuster's fact-finding activities to be financed by his campaign? House Rule 45 prohibits the use of non-House funds for official purposes to prevent either the appearance or actuality of influence peddling. According to a 1977 House of Representatives Commission on Administrative Review:

The Commission strongly believes that private funds should be used only for politically related purposes. Official allowances should reflect the necessary cost of official expenses. Increasing official allowances... to eliminate reliance on private sources represents a small cost to the public for the benefits to be derived. To suggest otherwise would be to accept or condone the continuation of a system which, at the very least, allows for the appearance of impropriety, and, at worst, creates a climate for potential "influence peddling" through private financing of the official expenses of Members of Congress.(18)

Conversely, if any of Rep. Shuster's campaign-related activities were financed with official funds, then Rep. Shuster likely violated federal law prohibiting the misuse of appropriated funds. Federal law broadly prohibits the use of government resources for political purposes:

This basic principal has often been restated. For example, in Common Cause v. Bolger, a Federal District Court stated that: There is likely no acceptable way to finance Rep. Shuster's combined fact-finding and campaign fundraising events without violating either House Rule 45 or federal law. The merger of official and campaign functions creates an insoluble problem in terms of financing. This is one more reason why Rep. Shuster should not conduct these joint campaign fundraisers and fact-finding events. The House Committee on Standards of Official Conduct is responsible for protecting the public against Members of Congress who violate the public trust. The Committee must investigate possible violations with diligence and punish wrongdoers, if the ethics process is to protect the public and our democracy. Without vigorous investigations and appropriate punishment, House Members will be encouraged to break House Rules and federal law, because they may understand that they act with impunity. During the 104th Congress, the Ethics Committee showed a liberal permissiveness towards offenders against House Rules, and several Ethics Committee "investigations" were far less than thorough.(21)

We would prefer to amend our pending Shuster complaint rather than undertake a laborious search for a letter of transmittal to file this amendment as a new complaint. Obtaining a letter of transmittal could be time-consuming and difficult; obtaining three letters of refusal for our Shuster complaint took several weeks of work during a seven month period. That was, of course, before the House of Representatives made it much harder for citizens to file complaints by eliminating the three letters of refusal procedure. That the House has chosen to erect high barriers against the filing of ethics complaints -- barriers not present in the Senate ethics process -- is a serious flaw in the House ethics process; it shields House Members from investigations regarding possible violations of House Rules and federal law.(22)

Regarding whether the Ethics Committee will grant the Congressional Accountability Project leave to amend our pending complaint against Chairman Shuster, House Committee on Standards of Official Conduct Rule 16(g) states that:

The Ethics Committee's primary responsibility is to the public -- to protect the public against Members of Congress who might violate House Rules or federal law, not to protect Members of Congress from investigations regarding credible allegations of wrongdoing. If the Ethics Committee rejects this amendment for arbitrary reasons, or for no reason at all -- as in the Ethics Committee's rejection of an amendment to a complaint against Speaker Newt Gingrich last year(23) -- the public will know that the Ethics Committee is, once again, shielding a powerful fellow politician from legitimate ethics scrutiny. If you refuse to grant leave to amend our Shuster complaint, please state in writing the reasons for refusal.

Sincerely,

Gary Ruskin
Director


Certificate of Service


This is to certify that I have today, by hand delivery, provided an exact copy of this amendment to the respondent in this matter, Representative E. G. "Bud" Shuster, at the following address:
 

Representative Elmer Greinert "Bud" Shuster
2188 Rayburn House Office Building
U.S. House of Representatives
Washington, DC 20515
 
 
 
 

Gary Ruskin
Complainant


Endnotes


1. Damon Chappie, "Transportation Chairman Hits Road To Scare Up Campaign Contributions." Roll Call, October 31, 1996. Attachment #1 also includes "Toll Road," editorial, Roll Call, October 31, 1996.

2. Matthew Barakat, "Shuster Visit Raises Funds, Eyebrows." Frederick News-Post, October 26, 1996. See Attachment #2.

3. Correspondence from Brooks R. Edwards and Bernard Grove of the Frederick Area Committee for Transportation, October 8, 1996. See Attachment #3.

4. Committee on Transportation and Infrastructure, U.S. House of Representatives, "Special Attention: Hearings on NAFTA, Related Issues, Chairmen Shuster, Petri Announce Filed Hearings on U.S.-Mexico Border to Examine Transportation and Infrastructure Issues." News release, July 19, 1996. See Attachment #4.

5. Louis Freedberg, "State Could Decide Control of Congress, Gingrich Tweaking Budget to Help House Candidates." San Francisco Chronicle, July 9, 1996. See Attachment #5.

6. John Keahey, "Pennsylvanian Campaigning in Beehive State." Salt Lake Tribune, September 17, 1996. Attachment #6 also contains "Fueling Cynicism," editorial, Salt Lake Tribune, September 21, 1996.

7. Ed Henry and Damon Chappie, "A Billion-Dollar Arkansas Road Project Pits Chairman Against Majority Leader." Roll Call, October 6, 1997. See Attachment #7.

8. Emmett George, "700 Rally in Stuttgart to Make Case for I-69." Arkansas Democrat-Gazette, October 17, 1996. See Attachment #8.

9. House Rule 43, clause 1.

10. Senate Select Committee on Ethics, Investigation of Senator Alan Cranston, S. Rep. No. 102-223, 102d Cong., 1st Sess. 11-12 (1991). Quoted in the House Ethics Manual at 250-51.

11. Senator Paul Douglas, Ethics in Government. Harvard University Press, Cambridge, 1952. p. 89. Quoted in the House Ethics Manual at 257.

12. House Ethics Manual at 251, quoting from Cranston Report at 29.

13. 506 F.2d 62 (D.C. Cir. 1974).

14. See William M. Welch II, "The Federal Bribery Statute and Special Interest Campaign Contributions." Journal of Criminal Law & Criminology (1989), 79 J. Crim L. 1347. See also Joseph R. Weeks, "Bribes, Gratuities, and the Congress: The Institutionalized Corruption of the Political Process, the Impotence of Criminal Law to Reach it, and a Proposal for Change." Journal of Legislation (1986), 13 J. Legis. 123.

15. Weeks, at 137-8.

16. Reid H. Weingarten, "Legislative Corruption." In U.S. Department of Justice manual on the Prosecution of Public Corruption Cases (1988), p. 63.

17. Buckley v. Valeo 424 U.S. 1 (1976) at 26-27.

18. House Commission on Administrative Review, Financial Ethics, House Doc. No. 95-73, 95th Congress., 1st Sess. 18 (1977). Quoted in the House Ethics Manual at 218.

19. 31 U.S.C. §1301(a)

20. Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982), aff'd 461 U.S. 911 (1983).

21. Testimony of Gary Ruskin, Director of the Congressional Accountability Project, before the House Ethics Reform Task Force, March 4, 1997.

22. Testimony of Gary Ruskin, Director of the Congressional Accountability Project, before the House Ethics Reform Task Force, June 20, 1997. "Sham Ethics." The New York Times, September 23, 1997. "Ethics Menace." Roll Call, September 15, 1997. "The House Excludes The Public." St. Louis Post Dispatch, September 24, 1997. "Prognosis Bleak For Ethics Reform." Allentown Morning Call, September 16, 1997. Charles Levendosky, "House Ethics 'Reform' A Secretive Ruse." Fort Lauderdale Sun-Sentinel, June 3, 1997.

23. Correspondence from House Committee on Standards of Official Conduct Chairman Nancy L. Johnson and Ranking Democratic Member Jim McDermott to Honorable David Bonior, Minority Whip, U.S. House of Representatives, January 25, 1996. See Attachment #9.