    [House Prints, 111th Congress]
    [From the U.S. Government Publishing Office]

    111th Congress                                         Review No.
     1st Session             HOUSE OF REPRESENTATIVES       09-4486
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                        OFFICE OF CONGRESSIONAL ETHICS
                           UNITED STATES HOUSE OF
                               REPRESENTATIVES

                                 --------

                                Report and Findings

                                Transmitted to the
                    Committee on Standards of Official Conduct
                               on December 2, 2009
                and released publicly pursuant to H. Res. 895 of the
                               110th Congress as amended

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                                  December 2009

    111th Congress                                         Review No.
     1st Session             HOUSE OF REPRESENTATIVES       09-4486
    --------------------------------------------------------------------

                        OFFICE OF CONGRESSIONAL ETHICS
                           UNITED STATES HOUSE OF
                               REPRESENTATIVES

                                 --------

                                Report and Findings

                                Transmitted to the
                    Committee on Standards of Official Conduct
                               on December 2, 2009
                and released publicly pursuant to H. Res. 895 of the
                               110th Congress as amended

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                December 2009

                         U.S. GOVERNMENT PRINTING OFFICE
    54-539                       WASHINGTON : 2009

                                   OFFICE OF
                            CONGRESSIONAL ETHICS
                                    BOARD

                        UNITED STATES HOUSE OF REPRESENTATIVES
                              ONE HUNDRED ELEVENTH CONGRESS

    DAVID SKAGGS, Chair
    PORTER GOSS, Co-Chair
    YVONNE BURKE
    KAREN ENGLISH
    ALLISON HAYWARD
    JAY EAGEN
    WILLIAM FRENZEL
    ABNER MIKVA
                                       ---------

    Leo J. Wise, Chief Counsel & Staff Director
    Kedric L. Payne, Investigative Counsel

                                     REPORT

                               Review No. 09-4486

        The Board of the Office of Congressional Ethics (hereafter
    ``the Board''), by a vote of no less than four members, on
    November 20, 2009, adopted the following report and ordered it
    to be transmitted to the Committee on Standards of Official
    Conduct of the United States House of Representatives.
        SUBJECT: Representative Peter Visclosky
        NATURE OF THE ALLEGED VIOLATION: In fiscal year 2009,
    Representative Peter Visclosky authored several earmarks for
    clients of PMA Group, Inc. (hereafter ``PMA''). During campaign
    cycles 2008 and 2010, Representative Visclosky received
    contributions to his campaign committee and Leadership PAC from
    PMA's PAC, PMA employees, the PACs of PMA clients for whom he
    authored earmarks, and the employees of those clients. In March
    2008, Representative Visclosky solicited PMA clients for
    campaign contributions and provided them with special access to
    him and his staff one week before authoring their earmarks.
        If Representative Visclosky solicited or accepted
    contributions or other items of value in exchange for or
    because of an official act, or solicited or accepted
    contributions or other items of value in a manner which gave
    the appearance that the contributions were linked to an
    official act, then Representative Visclosky may have violated
    18 U.S.C. Sec. 201(b) (Bribery), 18 U.S.C. Sec. 201(c) (Illegal
    Gratuities), 5 U.S.C. Sec. 7353 (Gifts), and House Rules and
    Standards of Conduct.
        RECOMMENDATION: The Board of the Office of Congressional
    Ethics recommends that the Committee on Standards of Official
    Conduct further review the above allegations.
        VOTES IN THE AFFIRMATIVE: 6
        VOTES IN THE NEGATIVE: 0
        MEMBER OF THE BOARD OR STAFF DESIGNATED TO PRESENT THIS
    REPORT TO THE COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT: Leo
    Wise, Staff Director & Chief Counsel.
                               TABLE OF CONTENTS

      I. INTRODUCTION.....................................................3
              A. Summary of Allegations..............................     3
              B. Jurisdictional Statement............................     3
              C. Procedural History..................................     4
              D. Summary of Investigative Activity...................     4
     II. REPRESENTATIVE VISCLOSKY SOLICITED PMA CLIENTS FOR CAMPAIGN
         CONTRIBUTIONS AND PROVIDED THEM WITH SPECIAL ACCESS TO HIM AND HIS
         STAFF ONE WEEK BEFORE AUTHORING THEIR EARMARKS...................8
              A. Applicable Law, Rules, and Standards of Conduct.....     8
              B. Representative Visclosky's Staff Instructed PMA
                  Clients to Submit Their Fiscal Year 2009 Earmark
                  Requests to His Office by February 15, 2008........    11
              C. Representative Visclosky's Campaign Solicited PMA
                  Clients for Campaign Contributions on February 27,
                  2008...............................................    13
              D. Representative Visclosky Hosted a Fundraiser
                  Specifically for PMA Clients and Other Defense
                  Contractors Requesting Earmarks on March 12, 2008..    15
              E. Representative Visclosky Requested Earmarks for PMA
                  Clients on March 19, 2008..........................    16
              F. PMA Clients' Perceptions of Link Between Campaign
                  Contributions and Earmark Requests.................    18
    III. CONCLUSION......................................................21
     IV. INFORMATION THE OCE WAS UNABLE TO OBTAIN AND RECOMMENDATIONS FOR
         THE ISSUANCE OF SUBPOENAS.......................................22
                     FINDINGS OF FACT AND CITATIONS TO LAW

                               Review No. 09-4486

        On November 20, 2009, the Board of the Office of
    Congressional Ethics (hereafter the ``Board'' and the ``OCE'')
    adopted the following findings of fact and accompanying
    citations to law, regulations, rules and standards of conduct
    (in italics). The Board notes that these findings do not
    constitute a determination of whether or not a violation
    actually occurred.

                                I. INTRODUCTION

                           A. SUMMARY OF ALLEGATIONS

        1. There is probable cause to believe that Representative
    Visclosky solicited or accepted contributions or other items of
    value in exchange for or because of an official act, or
    solicited or accepted contributions or other items of value in
    a manner which gave the appearance that the contributions were
    linked to an official act. Because Representative Visclosky,
    his former Chief of Staff, and his former Appropriations
    Director, have declined to interview with the OCE, and because
    the OCE cannot compel their cooperation, the OCE is unable to
    determine whether there is a substantial reason to believe
    these allegations.\1\
    ---------------------------------------------------------------------------
        \1\ As per Rule 9 of the Office of Congressional Ethics, Rules for
    the Conduct of Investigations 11 (2009), ``in the event the Office is
    unable to obtain information necessary to reach that determination
    [that there is substantial reason to believe the allegations], but the
    Board does determine there is probable cause to believe the
    allegations, the Board may refer the matter to the Standards Committee
    for further review.'' See also H. Res 895, 110th Cong. Sec. 1(c)(2)(B)
    (2008) (as amended).
    ---------------------------------------------------------------------------

                          B. JURISDICTIONAL STATEMENT

        2. The allegations that were the subject of this review
    concern Representative Visclosky, a Member of the United State
    House of Representatives from the 1st District of Indiana. The
    Resolution the United States House of Representatives adopted
    creating the Office of Congressional Ethics (hereafter ``OCE'')
    directs that, ``[n]o review shall be undertaken . . . by the
    board of any alleged violation that occurred before the date of
    adoption of this resolution.'' The House adopted this
    Resolution on March 11, 2008. Because the conduct under review
    occurred after March 11, 2008, review by the Board is in
    accordance with the Resolution.

                             C. PROCEDURAL HISTORY

        3. The OCE received a written request for a preliminary
    review in this matter signed by at least two members of the
    Board on July 6, 2009. The preliminary review commenced on that
    date.\2\ The preliminary review was scheduled to end on August
    5, 2009.
    ---------------------------------------------------------------------------
        \2\ A preliminary review is ``requested'' in writing by members of
    the Board of the OCE. The request for a preliminary review is
    ``received'' by the OCE on a date certain. According to H. Res. 895 of
    the 110th Congress (hereafter ``the Resolution'), the timeframe for
    conducting a preliminary review is 30 days from the date of receipt of
    the Board's request.
    ---------------------------------------------------------------------------
        4. At least three members of the Board voted to initiate a
    second phase review in this matter on August 5, 2009. The
    second phase review commenced on August 6, 2009.\3\ The second-
    phase review was scheduled to end on September 20, 2009.
    ---------------------------------------------------------------------------
        \3\ According to the Resolution, the Board must vote on whether to
    conduct a second-phase review in a matter before the expiration of the
    30-day preliminary review. If the Board votes for a second-phase, the
    second-phase begins when the preliminary review ends. The second-phase
    review does not begin on the date of the Board vote.
    ---------------------------------------------------------------------------
        5. The Board voted to extend the 45-day second phase review
    by an additional 14 days on September 17, 2009, as provided for
    under H. Res 895. Following the extension, the second-phase
    review was scheduled to end on October 5, 2009.\4\
    ---------------------------------------------------------------------------
        \4\ Id. at 1(c)(2)(A)(ii) (2008).
    ---------------------------------------------------------------------------
        6. The Board voted to refer the matter to the Committee on
    Standards of Official Conduct for further review and adopted
    these findings on November 20, 2009.
        7. This report and findings in this matter were transmitted
    to the Committee on Standards of Official Conduct on December
    2, 2009.

                      D. SUMMARY OF INVESTIGATIVE ACTIVITY

        8. Due to the nature of the allegations in this review, the
    OCE's investigation required the collection of information from
    a number of sources.
        9. The OCE reviewed publically available records of
    campaign contributions to the campaign committees of Members of
    the House Appropriations Subcommittee on Defense (hereafter
    ``Defense Subcommittee'') from recipients of earmarks during
    the 2008 and 2010 campaign cycles. The review included campaign
    contributions to the leadership political action committees
    (hereafter ``PACs''), if any, of these Members.
        10. Specifically, the OCE reviewed campaign contributions
    to these Members from donors that were affiliated with the
    lobbying firm of Paul Magliocchetti and Associates Group, Inc.
    (hereafter ``PMA''), i.e., contributions from the PMA PAC, PMA
    employees, the PACs of corporate clients of PMA (hereafter
    ``PMA clients'') and employees of PMA clients.
        11. The OCE also reviewed campaign contributions to Members
    of the Defense Subcommittee from PACs of non-PMA clients, and
    employees of non-PMA clients.
        12. Beyond Members of the Defense Subcommittee, the
    investigation included a review of campaign contributions from
    PMA clients and non-PMA clients to Representatives who are not
    on the Defense Subcommittee, but authored defense earmarks PMA
    clients and non-PMA clients.
        13. The OCE requested information from forty PMA clients
    that received earmarks from Members of the Defense Subcommittee
    for fiscal years 2008 to 2010.
        14. All of the PMA clients that the OCE contacted
    cooperated with the investigation, except for two.
        15. Aeroflex and Kimball and Associates are the only PMA
    client that refused to cooperate with the investigation.
        16. Thirty-eight PMA clients and Representatives' offices
    produced documents totaling approximately 200,000 pages. These
    PMA clients also made witnesses available for interviews upon
    request of the OCE.
        17. Based on the information discovered during the review
    of the produced documents, the OCE interviewed twenty-six
    individual PMA client witnesses.
        18. In addition, the OCE interviewed six witnesses who were
    formerly employed as lobbyists with PMA during the 2008 and
    2010 campaign cycles.
        19. In sum, the OCE requested and received documentary, and
    in some cases testimonial, information from the following
    sources:
              (1) 21st Century Systems, Inc.;
              (2) AAR Composites;
              (3) Advanced Acoustic Concepts;
              (4) Advanced Concepts & Technologies Intl.;
              (5) Aircraft Interior Products;
              (6) Applied Global Technologies;
              (7) Argon ST;
              (8) Boeing Corporation;
              (9) Carnegie Mellon University;
              (10) Coda Octopus Group;
              (11) Concurrent Technologies Corporation;
              (12) Conemaugh Health Systems;
              (13) Cryptek;
              (14) DDL OMNI Engineering;
              (15) DRS Technologies;
              (16) EM Solutions;
              (17) General Atomics;
              (18) General Dynamics;
              (19) Goodrich Corporation;
              (20) Innovative Concepts, Inc.;
              (21) ITT Corporation;
              (22) Lockheed Martin Corporation;
              (23) MobilVox;
              (24) NuVant Systems, Inc.;
              (25) Optimal Solutions & Technologies;
              (26) Parametric Technology Corporation;
              (27) Planning Systems Inc.;
              (28) Profile Systems;
              (29) Prologic, Inc.;
              (30) QTL Biosystems;
              (31) RaySat Antenna Systems;
              (32) Rockwell Collins;
              (33) Samueli Institute;
              (34) Sierra Nevada Corporation;
              (35) Teledyne Continental Motors, Inc.;
              (36) Teledyne Controls;
              (37) Windber Research Institute;
              (38) Xunlight Corporation;
              (39) Vice President, 21st Century Systems, Inc.;
              (40) Chief Administrative Officer, 21st Century
            Systems, Inc.;
              (41) Vice President for Communications, 21st Century
            Systems, Inc.;
              (42) PAC Treasurer, 21st Century Systems, Inc.;
              (43) General Manager, AAR Composites;
              (44) Chief Operating Officer, AAR Composites;
              (45) Chief Executive Officer, Applied Global
            Technologies;
              (46) Vice President, Applied Global Technologies;
              (47) PAC Treasurer, DRS Technologies;
              (48) President, DRS Technologies;
              (49) Chief Operating Officers, Optimal Solutions &
            Technologies;
              (50) Chief Executive Officer, Optimal Solutions &
            Technologies;
              (51) Director, Optimal Solutions & Technologies;
              (52) CEO, Samueli Institute;
              (53) Vice President, Sierra Nevada Corporation;
              (54) Congressional Affairs Director, Sierra Nevada
            Corporation;
              (55) Assistant to Business Development Director,
            Teledyne Continental Motors, Inc.;
              (56) Business Development Director, Teledyne
            Continental Motors, Inc.;
              (57) PAC Treasurer, Teledyne Controls;
              (58) General Manager, Teledyne Controls;
              (59) Vice President, Teledyne Controls;
              (60) Director of Contracts, Teledyne Controls;
              (61) Contract Administrator, Teledyne Controls;
              (62) Legislative Affairs Director, Teledyne Controls;
              (63) Associate General Counsel, Teledyne Controls;
              (64) President, Teledyne Controls;
              (65) PMA Lobbyist 1;
              (66) PMA Lobbyist 2;
              (67) PMA Lobbyist 3;
              (68) PMA Lobbyist 4;
              (69) PMA Lobbyist 5; and
              (70) PMA Lobbyist 6;

        II. REPRESENTATIVE VISCLOSKY SOLICITED PMA CLIENTS FOR CAMPAIGN
      CONTRIBUTIONS AND PROVIDED THEM WITH SPECIAL ACCESS TO HIM AND HIS
                 STAFF ONE WEEK BEFORE AUTHORING THEIR EARMARKS

               A. APPLICABLE LAW, RULES, AND STANDARDS OF CONDUCT

        20. 18 U.S.C. Sec. 201(b)--Bribery of public officials and
    witnesses ``(b) Whoever--
              (2) being a public official or person selected to be
            a public official, directly or indirectly, corruptly
            demands, seeks, receives, accepts, or agrees to receive
            or accept anything of value personally or for any other
            person or entity, in return for:
              (A) being influenced in the performance of any
            official act . . . .''
        21. 18 U.S.C.A. Sec. 201(c)--Illegal Gratuities
              ``(c) Whoever--
              (1) otherwise than as provided by law for the proper
            discharge of official duty--
        (B) being a public official, former public official, or
    person selected to be a public official, otherwise than as
    provided by law for the proper discharge of official duty,
    directly or indirectly demands, seeks, receives, accepts, or
    agrees to receive or accept anything of value personally for or
    because of any official act performed or to be performed by
    such official or person . . . .''
        22. ``An illegal gratuity . . . may constitute merely a
    reward for some future act that the public official will take
    (and may have already determined to take), or for a past act
    that he has already taken.'' \5\
    ---------------------------------------------------------------------------
        \5\ House Ethics Manual (2008) at 79. See also United States v.
    Sun-Diamond Growers, 526 U.S. 398, 404 (1999).
    ---------------------------------------------------------------------------
        23. House Rules and Standards of Conduct
              ``[T]he scope of the House standards of conduct in
            this area is broader than that of the criminal bribery
            statute . . . the House standards of conduct generally
            preclude any link between the solicitation or receipt
            of a contribution and a specific official action.'' \6\
    ---------------------------------------------------------------------------
        \6\ Memorandum of the Chairman and Ranking Minority Member,
    Recommendations for disposition of the complaint filed against
    Representative DeLay (``DeLay Report''). Accessed online on June 24,
    2009 at http://ethics.house.gov/Investigations/Default.aspx?Section=18.
    ---------------------------------------------------------------------------
              ``Put another way, there are fundraising activities
            that do not violate any criminal statute but well may
            violate House standards of conduct.'' \7\
    ---------------------------------------------------------------------------
        \7\ Id.
    ---------------------------------------------------------------------------
              ``[T]here are certain proffered campaign
            contributions that must be declined, and certain
            fundraising opportunities that must be forgone, solely
            because they create an appearance of improper
            conduct.'' \8\
    ---------------------------------------------------------------------------
        \8\ Id.
    ---------------------------------------------------------------------------
              ``[N]o solicitation of a campaign or political
            contribution may be linked to an action taken or to be
            taken by a Member or employee in his or her official
            capacity.'' \9\ In addition, a Member may not accept
            any contribution that is linked with any specific
            official action taken or to be taken by that Member.''
            \10\
    ---------------------------------------------------------------------------
        \9\ House Ethics Manual (2008) at 147.
        \10\ Memorandum of the Chairman and Ranking Minority Member,
    Recommendations for disposition of the complaint filed against
    Representative DeLay. Accessed online on June 24, 2009 at http://
    ethics.house.gov/Investigations/Default.aspx?Section=18 (``Ethics
    Committee DeLay Report'').
    ---------------------------------------------------------------------------
              ``It is probably not wrong for the campaign managers
            of a legislator . . . to request contributions from
            those for whom the legislator has done appreciable
            favors, but this should never be presented as a payment
            for the services rendered. Moreover, the possibility of
            such a contribution should never be suggested by the
            legislator or his staff as 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. The
            Standards Committee has long advised Members and staff
            that they should always exercise caution to avoid even
            the appearance that solicitations of campaign
            contributions are connected in any way with an action
            taken or to be taken in their official capacity.'' \11\
    ---------------------------------------------------------------------------
        \11\ Id.
    ---------------------------------------------------------------------------
              ``[A] Member should not sponsor or participate in any
            solicitation that offers donors any special access to
            the Member in the Member's official capacity.'' \12\
    ---------------------------------------------------------------------------
        \12\ Id.
    ---------------------------------------------------------------------------
              ``[G]overnment officials should `never discriminate
            unfairly by the dispensing of special favors or
            privileges to anyone, whether for remuneration or
            not.'' \13\
    ---------------------------------------------------------------------------
        \13\ Id. at 151 (citing Code of Ethics for Government Service,
    Sec. 5).
    ---------------------------------------------------------------------------
              `` `[P]ublic office is a public trust,' and the
            public has a right to expect House Members and staff to
            exercise impartial judgment in performing their
            duties.'' \14\
    ---------------------------------------------------------------------------
        \14\ Id. at 151 (citing Code of Ethics for Government Service,
    Sec. 10).
    ---------------------------------------------------------------------------
        24. 5 U.S.C. Sec. 7353--Gifts to Federal Employees
              ``(a) Except as permitted by subsection (b), no
            Member of Congress . . . shall solicit or accept
            anything of value from a person--
              (1) seeking official action from, doing business with
            . . . the individual's employing entity; or
              (2) whose interests may be substantially affected by
            the performance or nonperformance of the individual's
            official duties.
              (b)(1) Each supervising ethics office is authorized
            to issue rules or regulations implementing the
            provisions of this section and providing reasonable
            exceptions as may be appropriate.
              (2)(A) Subject to subparagraph (B), a Member,
            officer, or employee may accept a gift pursuant to
            rules and regulations established by such individual's
            supervising ethics office pursuant to paragraph (1)
              (B) No gift may be accepted pursuant to subparagraph
            (A) in return for being influenced in the performance
            of an official act.''
        25. House Ethics Manual--Soliciting Campaign and Political
    Contributions
              While the federal gift statute (5 U.S.C. Sec. 7353)
            broadly restricts the ability of
              House Members and staff to solicit things of value
            from virtually anyone, even when no personal benefit to
            the solicitor is involved, legislative materials
            concerning the statute state that it does not apply to
            the solicitation of political contributions. Consistent
            with those materials, the Standards Committee has long
            taken the position that the restrictions on
            solicitation set forth in that statute do not apply to
            political solicitations. However, in soliciting
            campaign or political contributions, Members and staff
            are subject to a number of other restrictions, as
            follows.
              A Contribution linked to an Official Action May Not
            Be Accepted
              . . . no solicitation of a campaign or political
            contribution may be linked to any action taken or to be
            taken by a Member or employee in his or her official
            capacity.
              In a similar vein, a Member or employee may not
            accept any contribution that the donor links to any
            official action that the Member or employee has taken,
            or is being asked to take. In this respect, a campaign
            or political contribution is treated like any other
            gift, and acceptance of a contribution in these
            circumstances may implicate a provision of the federal
            gift statute (5 U.S.C. Sec. 7353) or the criminal
            statutes on bribery and illegal gratuities.

     B. REPRESENTATIVE VISCLOSKY'S STAFF INSTRUCTED PMA CLIENTS TO SUBMIT
     THEIR FISCAL YEAR 2009 EARMARK REQUESTS TO HIS OFFICE BY FEBRUARY 15,
                                      2008

        26. Representative Visclosky is a member of the House
    Appropriations Subcommittee on Defense.
        27. On January 15, 2008,\15\ Representative Visclosky's
    Appropriations Director sent an email to companies that had
    previously contacted the office regarding defense
    appropriations requests.\16\
    ---------------------------------------------------------------------------
        \15\ The Board recognizes that this email is dated prior to March
    11, 2008. Nevertheless, this event is within the OCE's jurisdiction
    because it is directly related to Representative Visclosky's earmark
    requests that he submitted on March 19, 2008.
        \16\ Email from Shari Davenport to undisclosed recipients, dated
    January 15, 2008 (Exhibit 1 at 09-4486-2).
    ---------------------------------------------------------------------------
        28. The email notified the recipients that any defense
    appropriations requests must be submitted to Representative
    Visclosky's office by February 15, 2008.
        29. Recipients of the email included PMA, which in turn
    forwarded the email to its clients.\17\
    ---------------------------------------------------------------------------
        \17\ Id.

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       C. REPRESENTATIVE VISCLOSKY'S CAMPAIGN SOLICITED PMA CLIENTS FOR
                  CAMPAIGN CONTRIBUTIONS ON FEBRUARY 27, 2008

        30. On February 27, 2008,\18\ Representative Visclosky's
    campaign manager sent a campaign contribution solicitation to a
    select group of entities. These entities were those
    ``requesting support from Rep. Visclosky on a Defense issue.''
    \19\
    ---------------------------------------------------------------------------
        \18\ The Board recognizes that this solicitation was sent prior to
    March 11, 2008. Nevertheless, this event is within the OCE's
    jurisdiction because it is directly related to Representative
    Visclosky's campaign fundraiser that he held on March 12, 2008.
        \19\ Email from Brian Morgan to Mike Niggel, dated February 27,
    2008 (Exhibit 2 at 09-4486-6).
    ---------------------------------------------------------------------------
        31. PMA and PMA clients received this campaign contribution
    solicitation.
        32. The solicitation invited donors to attend a dinner in
    honor of Representative Visclosky at a restaurant in
    Washington, DC, on March 12, 2008.

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     D. REPRESENTATIVE VISCLOSKY HOSTED A FUNDRAISER SPECIFICALLY FOR PMA
    CLIENTS AND OTHER DEFENSE CONTRACTORS REQUESTING EARMARKS ON MARCH 12,
                                      2008

        33. On March 12, 2008, Representative Visclosky's campaign
    hosted the dinner in his honor.
        34. The Board notes that Mark Magliocchetti, in his
    February 26, 2008 email to ``THEPMAGROUP2K'', states that the
    March 12th event is for ``Defense'' and that another Visclosky
    event will be held on April 16th for ``E&W''.\20\ The Board
    infers that ``E&W'' refers to the Energy and Water Subcommittee
    of the House Appropriations Committee. Representative Visclosky
    is the chairman of this subcommittee and requests earmarks in
    the appropriations bill reported by the subcommittee.
    ---------------------------------------------------------------------------
        \20\ Email from Mike Niggel to Brian Morgan, dated February 26,
    2008 (Exhibit 3 at 09-4486-9).

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        35. Representative Visclosky had a similar dinner in March
    2007.\21\ A PMA client that attended the dinner in 2007
    commented that the CEO of the defense contractor ``was given
    the `honorary' seat at the head table sitting directly adjacent
    to Representative Visclosky and thus given the opportunity to
    talk about a variety of [the company's] ongoing and proposed
    projects.'' \22\
    ---------------------------------------------------------------------------
        \21\ The Board recognizes that this dinner occurred prior to March
    11, 2008. Nevertheless, this is relevant because it explains what was
    expected to occur at the March 2008 fundraiser.
        \22\ Email from PAC Treasurer, 21st Century Systems, Inc., to Bob
    Wichlinski, et al., dated February 26, 2008 (Exhibit 4 at 09-4486-11).
    ---------------------------------------------------------------------------
        36. The PMA client further explains to the company's
    employees that ``this opportunity to spend more than 2 hours
    with the congressman and his staff (both chief of staff and
    defense aid) would not have been possible without your generous
    contributions to the member and the company's PAC.'' \23\
    ---------------------------------------------------------------------------
        \23\ Id.

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    E. REPRESENTATIVE VISCLOSKY REQUESTED EARMARKS FOR PMA CLIENTS ON MARCH
                                    19, 2008

        37. In March 2008, Representative Visclosky's campaign and
    Leadership PAC received campaign contributions totaling
    approximately $35,300 from PMA clients. This includes
    contributions from the PAC of PMA clients and from employees of
    PMA clients. The contributions were from 21st Century Systems,
    Inc. ($18,500); Advanced Concepts & Technologies Intl.
    ($7,000); Planning Systems, Inc. ($7,800); and Sierra Nevada
    Corporation ($2,000).\24\
    ---------------------------------------------------------------------------
        \24\ The contribution amounts are derived from the reports that
    Visclosky for Congress and Calumet PAC filed with the Federal Election
    Commission.
    ---------------------------------------------------------------------------
        38. During the same month, Representative Visclosky's
    campaign and Leadership PAC received campaign contributions
    totaling $12,000 from PMA's PAC and the company's employees.
        39. On March 19, 2008, Representative Visclosky requested
    earmarks for six PMA clients in letters to Representative David
    Obey, Chairman, and Representative Jerry Lewis, Ranking Member,
    of the House Committee on Appropriations.\25\
    ---------------------------------------------------------------------------
        \25\ For example, Letter from Representative Peter J. Visclosky to
    Representative David Obey, Chairman, and Representative Jerry Lewis,
    Ranking Member, of the House Committee on Appropriations, dated March
    19, 2008 (Exhibit 5 at 09-4486-13).

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        40. The requested earmarks totaled $14,400,000, and were
    allocated as follows:
              (a) 21st Century Systems, Inc., $2,400,000;
              (b) Advanced Concepts & Technologies Intl.,
            $2,400,000;
              (c) General Atomics, $2,400,000;
              (d) NuVant Systems, Inc., $2,400,000;
              (e) Planning Systems Inc., $2,400,000; and
              (f) Profile Systems, $2,400,000.\26\
    ---------------------------------------------------------------------------
        \26\ H.R. 2638, Pub. L. 110-329 (2009).
    ---------------------------------------------------------------------------
        41. The Board notes that the evidence above is primarily
    relevant to the allegation that Representative Visclosky
    solicited or accepted contributions in a manner which gave the
    appearance that the contributions were linked to an official
    act. In addition, the evidence is relevant to the allegation
    that Representative Visclosky solicited or accepted
    contributions in exchange for or because of an official act
    (i.e., the allegations concerning bribery and illegal
    gratuities). However, because the OCE was unable to interview
    Representative Visclosky and his staff, the evidence is
    incomplete as to whether he in fact solicited or accepted
    contributions in exchange for or because of the earmark
    requests. As explained in Part III, below, the Board finds that
    the available evidence establishes that there is probable cause
    to believe that Representative Visclosky solicited or accepted
    contributions in exchange for or because of an official act.

    F. PMA CLIENTS' PERCEPTIONS OF LINK BETWEEN CAMPAIGN CONTRIBUTIONS AND
                                EARMARK REQUESTS

        42. The OCE has acquired evidence that PMA clients seeking
    earmarks from Representative Visclosky linked contributions to
    his campaign to specific legislative acts.
        43. However, whether these documents or the information in
    the documents was shared with Representative Visclosky because
    he declined to interview with the OCE.
        44. 21st Century Systems, Inc. created a table of
    ``Proposed CY2008'' campaign contributions, which indicates the
    proposed contribution that the PAC will make followed by the
    ``possible program'', which is an earmark that Representative
    Visclosky requested for fiscal year 2009.\27\
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        \27\ 21st Century Systems, Inc. Proposed CY 2008 Congressional
    Campaign Contributions (Exhibit 6 at 09-4486-15).

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        45. The Vice President of another company justifies a
    $20,000 contribution to Representative Visclosky because ``[w]e
    have gotten over 10M in adds from him.'' \28\
    ---------------------------------------------------------------------------
        \28\ Email from Vice President, Sierra Nevada Corporation, to John
    Campbell, dated February 23, 2007 (Exhibit 7 at 09-4486-18). The Board
    recognizes that this email is dated prior to March 11, 2008.
    Nevertheless, this is instructive as to the state of mind of the PMA
    client when it contributed to Representative Visclosky in 2008 with a
    pending earmark request for fiscal year 2009.

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        46. The federal gift statute, 5 U.S.C. Sec. 7353, prohibits
    the solicitation or acceptance of anything of value from a
    person seeking official action from or doing business with the
    House, or from someone whose interests may be substantially
    affected by the performance or nonperformance of a Member's,
    Officer's or staff member's official duties. The statute also
    provides that the Committee on Standards of Official Conduct
    may enact reasonable exceptions to the prohibition. According
    to the Ethics Manual, the Standards Committee has long taken
    the position that the restrictions on solicitation set forth in
    the statute do not apply to political solicitations. However,
    Members and staff are subject to a number of other restrictions
    regarding the solicitation of campaign or political
    contributions under the rules of the House.
        47. Under House rules, a Member or employee may not accept
    any contribution that the donor links to any official action
    that the Member or employee has taken, or is being asked to
    take. If a donor's contribution is linked to any official
    action, it is treated like any other gift and may be subject as
    such to the federal gift statute and the criminal statutes on
    bribery and illegal gratuities.
        48. The Board notes that the examples provided in the
    Ethics Manual of instances where a Member may be in violation
    of the House's rule against accepting a contribution linked to
    an official action are all instances in which the Member has
    some degree of knowledge of the link. As a result, it stands to
    reason that it is unlikely a violation of the rule could occur
    unless and until a Member is aware of the link and does nothing
    to remedy the situation.
        49. The Board notes that because the OCE was unable to
    interview Representative Visclosky or his staff, the Board is
    unable to conclude whether the Member was aware or not that the
    donor linked the contribution to an official act.

                                III. CONCLUSION

        50. According to the Committee on Standards of Official
    Conduct (``Standards Committee''), a ``Member should not
    participate in a fundraising event that gives even the
    appearance that special treatment or special access to the
    Member in his or her official capacity is being provided to
    donors.'' \29\
    ---------------------------------------------------------------------------
        \29\ Ethics Committee DeLay Report at 15.
    ---------------------------------------------------------------------------
        51. Specifically, the Standards Committee has found that a
    Member's fundraising efforts warranted a letter of admonition
    because of factors including: (1) the ``timing of the
    fundraiser'' before pending legislation; (2) the ``limited
    number of attendees'' at the fundraiser; and (3) the ``presence
    at the fundraiser of two key staff members from [The Member's
    office]''.\30\
    ---------------------------------------------------------------------------
        \30\ Id.
    ---------------------------------------------------------------------------
        52. Based on the information available to the OCE,
    Representative Visclosky's actions in March 2008 were similar
    to those that the Ethics Committee admonished in the past
    because: (1) the timing of the fundraiser was one week before
    he took official action on behalf of the donors; (2) the
    attendees at the fundraiser were limited to defense contractors
    with pending earmark requests before the Representative
    Visclosky; and (3) Representative Visclosky's Chief of Staff
    and Appropriations Director attended the fundraiser.
        53. Also, the documents the OCE obtained through its
    investigation show that PMA clients perceived a connection
    between appropriations requests and campaign contributions to
    Representative Visclosky. Without further information that can
    only be obtained through witness interviews with Representative
    Visclosky, the OCE cannot fully assess his role in or knowledge
    of what appears to be the linking of contributions to the
    receipt of earmarks.
        54. The Board recognizes that it does not have all of the
    information necessary to make a determination of whether there
    is substantial reason to believe that a violation occurred
    because Representative Visclosky, his former Chief of Staff,
    and his former Appropriations Director, have declined to
    interview with the OCE.
        55. However, the Board finds that there is probable cause
    to believe that Representative Visclosky solicited or accepted
    contributions or other items of value in exchange for or
    because of an official act, or solicited or accepted
    contributions or other items of value in a manner which gave
    the appearance that the contributions were linked to an
    official act.
        56. For these reasons, the Board recommends that the
    Standards Committee further review the above described
    allegations concerning Representative Visclosky.

     IV. INFORMATION THE OCE WAS UNABLE TO OBTAIN AND RECOMMENDATIONS FOR
                           THE ISSUANCE OF SUBPOENAS

        57. In every instance the OCE asked the recipient of an OCE
    request for information to identify any information they
    withheld and the reason they were withholding it. However,
    absent the authority to subpoena the evidence in possession of
    the witness, it is impossible for the OCE to verify if
    information was withheld, but not documented.
        58. In some instances documents were redacted or specific
    information was not provided. For instance, DRS Technologies
    provided evidence responsive to OCE's Request for Information
    but indicated they would not provide any information regarding
    their ``Legislative Strategy.''
        59. In at least one instance, the OCE had reason to believe
    that a witness withheld information requested, but did not
    comply with the OCE's request that they identify what was being
    withheld. Specifically, Boeing Corporation represented that
    they had fully cooperated. However, Boeing Corporation
    indicated that they had no electronic mail responsive to OCE's
    Request for Information. The OCE then received, from another
    source, electronic mail to and from Boeing Corporation that
    were in fact responsive to OCE's request.
        60. The Board also notes that while the OCE was able to
    interview six former employees of PMA that provided general
    information on PMA and its business practices, many remaining
    former employees refused to consent to interviews. In addition,
    the OCE was unable to obtain any evidence within PMA's
    possession.
        61. Representative Visclosky declined to provide the OCE
    with an interview. Representative Visclosky produced documents
    in response to the OCE's request for information. However, the
    documents primarily consisted of earmark requests submitted to
    the Member's office without any clear explanation of how
    Representative Visclosky and his staff determined which
    requests that the Member supported. In addition, the documents
    included information from Representative Visclosky's campaign,
    much of which is publically available from the Federal Election
    Commission.
        62. Representative Visclosky's former Chief of Staff, Chuck
    Brimmer, and his former Appropriations Director, Shari
    Davenport, declined an interview with the OCE.
        63. The Board makes the recommendation contained in this
    referral based on the factual record before it. The Board
    recommends the issuance of subpoenas.

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