[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
[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
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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).
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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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