The report and findings prepared by the Office of Congressional Ethics in its review of Representative Steve Stockman, released yesterday by the U.S. House of Representatives Committee on Ethics, is the latest in a series of reviews in which OCE has recommended investigation of Members over substantive violations of the federal campaign finance laws.
The standard of conduct advanced by OCE as the basis of the alleged violation is clause 1 of House Rule 23, which requires Members to conduct themselves in a manner reflecting creditably on the House. In Mr. Stockman’s review, which involves claims of contributions misreported and made in the name of another, OCE draws support from a passage on page 122 of the House Ethics Manual, which tells Members they must take “reasonable steps to ensure” that their campaigns and leadership PACs operate “in compliance with applicable law.” OCE then cites three authorities to reject the claim of the Stockman campaign’s accountant that he properly reattributed the contributions at issue: (1) a quote from the FEC’s 1987 explanation of its reattribution rules, which OCE uses to assert that a contribution may only be reattributed for reporting purposes “when made by more than one person in a single written instrument”; the Commission’s general reattribution rule at 11 C.F.R. § 110.1(k); and the FEC’s Campaign Guide for Congressional Candidates and Committees.
Setting aside the merits of the Stockman referral—which the Committee on Ethics said it would review—the OCE report and findings raise two questions:
First, when exactly should the Committee on Ethics take up claims of campaign finance violations by Members’ campaigns? None would reasonably contend that the Committee, under the law as now understood, should stand down from all matters involving campaign finance. In a matter involving Representative Jay Kim’s 1997 campaign, the Committee found that it “has jurisdiction to investigate allegations of misconduct relating to a successful campaign for election to the House,” and the House ethics restrictions on personal use of campaign funds are largely co-extensive with the FEC prohibitions.
Still, the Committee has recognized the complexity of these laws and been very cautious in analyzing them. It routinely tells Members to seek advice from the Federal Election Commission before engaging in conduct that may raise campaign finance issues. And its ten members surely know that their colleagues campaigns’ are repeatedly assessed administrative fines by the FEC, and frequently agree to pay civil penalties through the Commission’s enforcement process. The Stockman matter involves highly aggravated facts: the prohibition on contributions in the name of another is a “heartland” provision of FECA that is often criminally enforced. But where is the line between common, often unknowing lapses, and the sort of misconduct for which Members should be held accountable through Committee investigations, reports and sanctions? In the Stockman report, OCE does not say. The Committee will want to provide some guidance on this question, lest Members’ political opponents flood OCE and the ethics process with complaints that they would have once filed with the FEC.
Second, what level of expertise and analysis should be required when OCE prepares and sends written findings, intended for publication, alleging substantive violations of the campaign finance laws? There is a reason why the FEC has exclusive civil jurisdiction over the enforcement of the campaign finance laws, why the Department of Justice has sought FEC expertise in past prosecutions, and why—again— the Committee on Ethics is cautious in referring Members to the FEC on campaign finance matters. As a federal judge in California once said, in remarks previously quoted on this blog: “I think it would be a lot more comprehensible to read the Internal Revenue Code from start to finish than to figure out some of the evidence that was issued on the Federal Election Commission requirements.” But OCE lacks the Commission’s resources and subject matter expertise. It also reviews matters on a fast timetable, and under confidentiality rules that it has interpreted to provide little opportunity to test legal arguments through back-and-forth with respondents’ counsel. The thorny field of federal campaign finance regulation, where the answers are seldom what one expects them to be, offers heightened opportunities for error—with potential prejudicial consequences for Members, staff and witnesses—that the OCE should take special care to consider and avoid.