[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
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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


                     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\
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    \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).
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                      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.
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    \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.
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    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.
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    \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.
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    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\
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    \4\ Id. at 1(c)(2)(A)(ii) (2008).
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    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\
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    \5\ House Ethics Manual (2008) at 79. See also United States v. 
Sun-Diamond Growers, 526 U.S. 398, 404 (1999).
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    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\
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    \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.
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          ``Put another way, there are fundraising activities 
        that do not violate any criminal statute but well may 
        violate House standards of conduct.'' \7\
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    \7\ Id.
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          ``[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\
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    \8\ Id.
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          ``[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\
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    \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'').
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          ``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\
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    \11\ Id.
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          ``[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\
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    \12\ Id.
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          ``[G]overnment officials should `never discriminate 
        unfairly by the dispensing of special favors or 
        privileges to anyone, whether for remuneration or 
        not.'' \13\
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    \13\ Id. at 151 (citing Code of Ethics for Government Service, 
Sec. 5).
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          `` `[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\
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    \14\ Id. at 151 (citing Code of Ethics for Government Service, 
Sec. 10).
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    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\
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    \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).
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    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\
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    \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\
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    \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).
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    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.
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    \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\
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    \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).
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    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\
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    \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\
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    \24\ The contribution amounts are derived from the reports that 
Visclosky for Congress and Calumet PAC filed with the Federal Election 
Commission.
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    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\
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    \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\
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    \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\
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    \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\
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    \29\ Ethics Committee DeLay Report at 15.
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    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\
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    \30\ Id.
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    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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