Thin wall separates lobbyist contributions and earmarks

By R. Jeffrey Smith
Washington Post Staff Writer
Sunday, March 7, 2010

House Appropriations defense subcommittee member James P. Moran Jr. (D-Va.) works hard at fundraising: Two to three times a week, he telephones contributors to ask for more. Yet, according to the account he supplied to the Office of Congressional Ethics last year, he is unaware of "who made donations" or how much they gave, and so that information plays no role in his earmarking -- the systematic granting of public funds for mostly private purposes.

Fellow subcommittee member Norm Dicks (D-Wash.) similarly presides over fundraisers arranged by his staff for defense firms and lobbyists every three months or so, according to his office's account. An aide in charge of Dicks's earmarks attends the fundraising events. But Dicks and the aide told investigators they were unaware of the substantial overlap between defense industry contributions to Dicks and his earmarks to contributors.

The House ethics committee on Feb. 26 exonerated Dicks, Moran and five other defense subcommittee members of allegations that they had abused their offices by, in essence, selling earmarks to donors. In so doing, it drew heavily on promises such as these by lawmakers and staff members that their campaign fundraising operations had been carefully walled off from their earmarking decisions. Otherwise, their actions would violate laws and rules that bar any link between such donations and legislative acts.

In detailing how the lawmakers approached their earmarking, however, the ethics report and accompanying reports by the Office of Congressional Ethics (OCE) made clear that the wall between grants and donations in their offices was in many instances very thin. Key individuals in their offices played at least some role in both activities, starting with the lawmakers and typically including staff members responsible for reviewing and making preliminary earmark decisions.

Proving a connection

In the office of Rep. Marcy Kaptur (D-Ohio), for example, earmark requests are vetted by her deputy chief of staff, who is currently Nathan Facey. He told investigators he attended fundraisers and spoke with defense lobbyists who had requested multiple earmarks about "the process and schedule for mark-ups." He added that lobbyists did not make an explicit link to the donations, and that Kaptur would have been angry if they had.

Moran's former defense aide, who now works for Boeing, similarly vetted earmarks and attended fundraisers, according to the reports, as did a military aide to Rep. Todd Tiahrt (R-Kan.). "To suggest having a staffer on personal time attend his boss's fundraiser is in some way improper is absurd," said Tiahrt spokesman Sam Sackett.

The chief of staff to the late Rep. John P. Murtha (D-Pa.), who died on Feb. 8, regularly received campaign contribution lists and was the first reviewer of earmark requests, the report said. A Murtha aide responded Saturday that the review was cursory, however, and covered only a fraction of the requests.

The campaign manager for Rep. Peter J. Visclosky (D-Ind.) in March 2008 solicited funds directly from defense-related companies that wanted the lawmaker's earmark support, one report added, quoting from a lobbyist's e-mail.

At one of those companies, 21st Century Systems, an official had bragged in internal e-mails about how employees' contributions had secured more than two hours with Visclosky, his chief of staff and a defense aide. Company employees gave $18,500 to him in March 2008, according to the report, and on the 19th of that month, Visclosky requested a $2.4 million earmark for the firm.

In total, the firms studied by investigators, all clients of the now-shuttered lobbying firm Paul Magliocchetti and Associates Group, better known as PMA Group, gave more than $834,000 to the seven members and received their endorsements for earmarked grants of more than $245 million in public funds.

Five of the seven lawmakers and their aides told investigators that all these earmark decisions were divorced from contributions. Tiahrt and Visclosky declined to be interviewed in the probe, but their attorneys denied any wrongdoing by the lawmakers and wrote to the committee that no one had found evidence that the earmarks were granted as a result of contributions.

Visclosky's attorneys, Reid Weingarten and Brian Heberlig, wrote that his actions were nothing more than "examples of typical fundraising practices that Members have historically engaged in on a widespread and routine basis without recrimination."

Details in the reports nonetheless affirmed the strange dance that occurs between wealthy private interests and public officials in election season: Even as lawmakers claim independent judgment and say they act only for the public good, those who write campaign donation checks do so expecting a return on their investments, and their experience makes that outcome a good bet.

The fact that this practice appears to be legal is beside the point, because both donors and voters view it as corrupt, according to several independent campaign finance experts.

"This constant claim by members that there is no link is specious, because we can see the link," said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington (CREW), a nonprofit group. Sloan referred to data showing that well-targeted defense industry donations are routinely followed by earmarks or other legislative benefits.

Taxpayers for Common Sense, a nonprofit group that has criticized earmarks, has noted that 68 percent of the companies and universities that wanted earmarks and contributed to Senate defense appropriators this year got them, whereas 48 percent of those who did not make contributions got them. A similar outcome occurred in the House defense subcommittee, said Laura Peterson, a senior policy analyst at the group.

A question of intent

In the probe, the legislative director for Teledyne Controls, a California firm that benefited from some recent earmarks, told investigators that in making contributions, "it does go through your mind whether you are buying influence."

The treasurer for the company's political action committee said more bluntly that he had never seen a proposal to donate to any lawmaker who could not influence the company's earmarks, and that he would question "why it made sense to give the money" to such a lawmaker, the report said.

But Stanley M. Brand, a campaign finance lawyer who represented Dicks in the probe, said that "puffing or concluding or acting" on the corporate side of the transaction is irrelevant to whether the law was broken by a lawmaker. He said that while bribery statutes cover both donors and recipients, "donor intent does not mean you can show" a lawmaker's intent was the same.

"You must show criminal intent on each side," not just a coincidence of funds flowing in both directions, he said. Otherwise, every interest group or corporation that donates to candidates and has legislative interests that succeed would be considered guilty of bribery.

To Sarah Dufendach, vice president for legislative affairs at Common Cause, that's not far from the truth: "It is hard to say it does not work the way the business community thinks it works when you can show, time after time, that they seem to be getting value for their campaign dollar."

Dufendach said she was troubled that under the standard posited in the new ethics committee report, investigators must find credible evidence of a quid pro quo between donations and earmarks, similar to the list of prices for legislative favors written by then-Rep. Randy "Duke" Cunningham (R-Calif.) before his 2005 guilty plea to federal bribery and fraud charges. In 2004, she and others noted, when the House committee admonished then-Majority Leader Tom DeLay (R-Tex.) for participating with key aides in a fundraising dinner for energy firms on the eve of a critical vote, it cited the need to avoid even the "appearance" of providing special treatment to contributors.

Last week, in its five-page dismissal of the complaints against the seven, the House ethics committee did not once mention the word "appearance."

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