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

RE: Request to Amend an Ethics Complaint Against Representative Bud Shuster

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.

A: House Transportation and Infrastructure Committee Chairman Shuster Has Repeatedly Linked Official Fact-Finding with Campaign Fundraising

Desperate to link two interstate highways together and relieve traffic through their historic business district, town leaders here did the only thing they believed would get the attention of House Transportation and Infrastructure Chairman Bud Shuster (R-Pa).

They held a fundraiser for his re-election.

"We were trying to be a squeaky wheel. We did everything we could think of to get the attentions of the powers who make these decisions," said Carolyn Barranca, a Frederick businesswoman who helped to organize last week's event....

Like the Frederick fundraiser and helicopter tour, at most stops Shuster mixes an official inspection of transportation needs with events benefitting his campaign war chest....

[In Frederick,] people talked quite bluntly about Shuster's visit. "It's the same reason you go to visit your mother-in-law," said a Frederick businessman who didn't want his name used. "You don't like to do it, but it keeps things smooth."⁽¹⁾

[Shuster] toured Frederick in Mayor Jim Grimes' helicopter Friday morning to see the traffic problems created by the poor connection between I-70 and I-270.

But the tour did not begin until after a fund-raiser for Mr. Shuster at the City Club organized by the Frederick Area Committee for Transportation (FACT), a private, non-profit organization that lobbies for transportation.⁽²⁾

In the fundraising solicitation letter from the Frederick Area Committee for Transportation, the fundraiser is clearly linked to a plea for official action:

Chairman Shuster is visiting Frederick at the request of the Frederick Area Committee for Transportation, Inc. (FACT), to review first-hand our transportation improvement needs. This will be a rare opportunity for you and your associates to demonstrate to Congress' most influential transportation supporter how our area's phenomenal growth and future potential are facing unfortunate constraints....

....We hope you will join us to discuss with Chairman Shuster our needs and plans for making Frederick second to none in the critical arenas of transportation and economic development.⁽³⁾

Congressman Bud Shuster (R-PA), Chairman of the House Committee on Transportation and Infrastructure, and Congressmen [sic] Thomas Petri (R-WI), Chairman of the Committee's Subcommittee on Surface Transportation have announced that field hearings on border transportation and infrastructure issues, including issues related to NAFTA, will be held in August by the Subcommittee on Surface Transportation. The hearings will be conducted on August 8th in Laredo, Texas, and on August 9th in McAllen, Texas....

"We will have a smaller hearing on Friday, August 9, in McAllen, Texas, to hear testimony from local residents on border infrastructure in the lower Rio Grande Valley, one of the fastest growing regions along the border." "To our knowledge, the Committee has not visited the Texas border and we believe that to truly understand border issues, it's necessary to visit and experience the area," concluded Shuster and Petri.⁽⁴⁾

Mike Allen, director of the McAllen Economic Development and Industrial Recruitment Office, said he and other leaders "decided we needed to do everything we can to get people to notice us."

Allen turned to Washington lobbyist Randolph DeLay, the brother of GOP Whip Tom DeLay (R-Texas), to help arrange a Transportation Committee field hearing and campaign fundraiser for Shuster.

Shuster, who didn't attend the field hearing, did go to the fundraiser -- complete with helicopter tour -- which netted his campaign $25,000, according to campaign filings....

"We probably took some extreme measures," said Allen, who once served the area as a Catholic priest and who stayed there as a business leader. "To me it's marketing. He [Shuster] wasn't at the hearing. When you have our desperate situation, you want somebody to help you. And we needed to get his attention."

Over the past month, [Rep. Frank] Riggs has also been touting a range of new spending initiatives, including $1.6 million for additional "park and ride" spaces along Highway 101 in Sonoma County, $1 million toward a bus and train depot in Eureka and a possible half billion dollars to widen Highway 101 in the North Bay.

To drive home the point, Representative Bud Shuster...came out to Sonoma County last month to say that the Republicans, with Riggs' help, would try to deliver on the highway project. "I would expect that next year we should be able to provide the funds for 101," he said at a Riggs campaign stop.⁽⁵⁾

In June, Shuster flew by helicopter over California's Sonoma County to look at Highway 101 with freshman Rep. Frank Riggs (R-Calif), who also has a tough race. Shuster also raised $18,000 at a California fundraiser at the same time.

Pennsylvania Congressman Bud Shuster, invited to Utah to tour highways and Winter Olympics sites, is also raising money for his re-election campaign....

The Utah Motor Transport Association held a breakfast for the Pennsylvania Republican on Monday morning. An association spokeswoman confirmed that representatives from the transportation and construction industries attended, as did Utah Transit Authority officials developing light rail for Salt Lake Valley, Gov. Leavitt, 2nd District Rep. Enid Greene and 1st District Rep. Jim Hansen.

Another gathering was held Monday Afternoon in Provo Canyon....

Acknowledging that his re-election committee was paying for the trip West, Shuster held out hope Monday that Congress could look favorably on Utah's transportation needs for communities affected by the Olympics, as well as projects such as I-15's reconstruction. And, he said, those additional projects could be funded with the federal government covering 80% to 90% of the cost.⁽⁶⁾

Provo's lobbyist in Washington, Patricia Jordan, helped to arrange a fundraiser for Shuster, who, once again, got a bird's-eye view with a helicopter tour. About 60 people attended the fundraiser, and Shuster reported raising $8,000....

Since the fall of 1995, House Transportation and Infrastructure Committee Chairman Bud Shuster (R-Pa) has twice descended upon the area of Pine Bluff, Ark., to hold fundraisers that netted his campaign some $20,000.⁽⁷⁾

Earlier in the day, Gov. Mike Huckabee flew to West Helena to visit with Shuster about the proposed interstate's [I-69] importance to Arkansas. Shuster was touring that area of Arkansas's 1^st Congressional District with [Rep. Jay] Dickey and Warren Dupwe of Jonesboro, the Republican nominee for the 1^st district seat. ⁽⁸⁾

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:

A Member, officer, or employee of the House of Representatives shall conduct himself at all times in a manner which shall reflect creditably on the House of Representatives.⁽⁹⁾

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

Because Senators occupy a position of public trust, every Senator always must endeavor to avoid the appearance that the Senator, the Senate, or the governmental process may be influenced by campaign contributions or other benefits provided by those with significant legislative or governmental interests.⁽¹⁰⁾

It is probably not wrong for the campaign managers of a legislator before an election to request contributions from those for whom the legislator has done appreciable favors, but this should never be presented as a payment for services rendered. Moreover, the possibility of such a contribution should never be suggested by the legislator or his staff at the time the favor is done. Furthermore, a decent interval of time should be allowed to lapse so that neither party will feel that there is a close connection between the two acts.⁽¹¹⁾

The Senate [Select] Committee [on Ethics] concluded that "established norms of Senate behavior do not permit linkage between . . . official actions and . . . fund raising activities." House Members, too, should be aware of the appearance of impropriety that could arise from championing the causes of contributors and take care not to show favoritism to them over other constituents.⁽¹²⁾

B: Request for a New House Rule Prohibiting Linkage Between Campaign Contributions and Official Action to Codify House Ethics Manual Warnings

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:

Brewster has proven to be a costly decision. Seldom has a single case at the circuit court level generated so much mischief in terms of potentially frustrating what should be routine convictions for corruption. All of this is a legitimate part of the price paid for the effort in Brewster to create a "legitimate campaign contribution" exception to section 201.

The effect of the Brewster analysis is the addition of an additional, and wholly unneeded, element to section 201. The Brewster requirement of attribution to a specific act, together with the "for himself" requirement of section 201(g) [illegal gratuity], means that, for all but the most careless, the prosecution of congressmen under section 201 is essentially precluded.⁽¹⁵⁾

...it should be noted that campaign contributions can be the stuff of both bribes and gratuities. When, however, the contributions are consistent with the Federal Election Campaign Act of 1971 and subsequent amendments to the Act, it is a steep, uphill climb to a successful prosecution, usually requiring a taped conversation of the illicit agreement between the donor and the Member of Congress.⁽¹⁶⁾

To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative government is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one.

Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. ⁽¹⁷⁾

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.

C: Did Representative Shuster Violate House Rule 45 or Federal Law in the Financing of His Official and Campaign Fundraising Travels?

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:

Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.⁽¹⁹⁾

 It is clear from the record that Congress has recognized the basic principle that government funds should not be spent to help incumbents gain reelection.⁽²⁰⁾

D: Conclusion

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:

A complaint may not be amended without leave of the Committee. Otherwise, any new allegations of improper conduct must be submitted in a new complaint that independently meets the procedural requirements of the Rules of the House of Representatives and the Committee's Rules.

Sincerely,

Gary Ruskin
Director

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

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.