The
Honorable Tom DeLay
Majority
Leader
Suite
H-107, The Capitol
Dear
Colleague:
As
you are aware, the Committee has made a number of decisions regarding the allegations
made in the complaint that was filed against you by Representative Bell on
your participation in and facilitation of an energy company
golf fundraiser at The Homestead resort for your leadership PACs on
your intervention in a partisan conflict in the Texas
House of Representatives using the resources of a Federal agency, the Federal
Aviation Administration. This action
raises serious concerns under House standards of conduct that preclude use of
governmental resources for a political undertaking.
The bases of these Committee determinations are as
follows.
Your actions regarding the energy
company golf fundraiser at The
On the basis of the
information before the Committee, the Committee concluded that your
participation in and facilitation of the energy company golf fundraiser at The
Homestead resort on June 2-3, 2002 is objectionable in that those actions, at a
minimum, created such an improper appearance.
As a general matter, fundraisers
directed to a particular industry or to others sharing a particular federal
interest are permissible, and at such events Members are free to talk about
their record and positions on issues of interest to the attendees. In addition, of course, a Member has no
control over what the donors at a fundraising event spontaneously say to or ask of the Member with regard to their legislative
interests. Nevertheless, there are a
number of considerations regarding this particular fundraiser that make your
participation in and facilitation of the fundraiser objectionable under the above-stated
standards of conduct.
In particular, there was the timing of the fundraiser,
i.e., it took place just as the
House-Senate conference on major energy legislation, H.R. 4, was about to get
underway. Indeed, one of the
communications between organizers of the fundraiser that you provided to us –
an e-mail of
In view of these considerations,
other aspects of the fundraiser that would have been unobjectionable otherwise
had the effect, in these specific circumstances, of furthering the appearance
that the contributors were receiving impermissible special treatment or
access. One of these aspects was the
presence at the fundraiser of two of your key staff members from your
leadership office: Jack Victory, who handled energy issues, and your office
counsel, Carl Thorsen. In addition,
there were the limited number of attendees, and the fact that the fundraiser
included several events at a resort over a two-day period, both of which
facilitated direct contact with you and your congressional staff members.
We also note the description of the
event that was provided to the Committee by counsel for the attendees of one of
the contributors, Westar Energy, Inc.
That description includes the following:
On
On
When we brought the above-quoted
statement to your attention and requested your response to it, you stated that you
gave a general briefing on energy issues at that event, but that you have no
recollection of your specific remarks. You
also stated that “it would not be typical” for you to have made such a
statement at a fundraiser, and that this is not at all consistent with the
manner in which you “normally would interact with attendees at such an
event.” In view of your response, the
Committee’s determination on this matter is not based on Mr. Lawrence’s
characterization of your remarks.
Rather, the other circumstances of the event, as set forth above, are
more than sufficient to support the Committee’s determination.
In addition, while the views of any one donor are not dispositive on whether a fundraising activity creates an
appearance of impropriety, the documents we obtained indicate that the
individuals who were active on Westar’s behalf were of the view that the
company’s participation in the fundraiser provided special access to you. In this regard, later in June 2002, when Mr.
Lawrence was proposing that Westar executives make additional contributions, he
stated that Westar had made “significant progress” with you and Representative
Barton, and that, “The contributions made in the first round were successful in
opening the appropriate dialogue.” When we asked Mr. Lawrence about that
statement, he said he was referring to the presentations he was able to make at
the fundraiser earlier that month. In
addition, the following month, when Westar’s lobbyist, Mr. Richard Bornemann,
sent a memorandum to your staff seeking an appointment with you for the
company’s CEO, he noted Westar’s participation in The Homestead fundraiser.
Your use of governmental
resources for a political undertaking. The Committee has long
taken the position that House standards of conduct prohibit Members from taking
(or withholding) any official action on the basis of the partisan affiliation
(or the campaign support) of the individuals involved. This is the point made in an advisory
memorandum that the Committee issued to House Members, officers and employees
on
Your
intervention in a partisan conflict in the Texas House of Representatives using
the resources of a Federal agency, the Federal Aviation Administration, raises
serious concerns under these standards of conduct. Your contacts with the FAA were in connection
with the dispute over congressional redistricting in the Texas House of
Representatives that occurred in May 2003.
The purpose of these contacts was to obtain information on the
whereabouts of Democratic Members of the Texas House who had absented
themselves from
The submissions that you made to the Committee argue that those contacts with the FAA were proper, but those arguments are not persuasive.
First, your
submissions assert that the Inspector General of the U.S Department of
Transportation (DOT IG) found no wrongdoing in this matter. It is correct that the statement that the DOT
IG submitted to the House Transportation and Infrastructure Committee states,
“We did not find that actions [taken by the FAA official whom your office
contacted] in this matter to have violated any rules or regulations.” However, the assertion made in your
submissions disregards a number of important considerations. To begin with, the DOT IG’s
statement raises specific concern about the FAA official’s failure to inquire
of your staff member as to why she was requesting information on the location
of the particular airplane, “[W]e do not understand why he did not ask the
staffer about the purpose of her request – particularly since he told us he
thought it might involve a safety issue.”
In addition, there are the statements made by the FAA official to the
DOT IG regarding his views of the requests of your office and his handling of
them after he learned about the absent
I figured out why they were calling. . . I just felt like I had been used. . . I don’t do anything for political purposes. . . and I just did not like. . . somebody calling me for political reasons. . . I would never use my office to help somebody politically, for any political reasons, period.
He also stated that in hindsight, “he would have handled the staffer’s request differently, by coordinating with the FAA Chief Counsel’s Office and senior agency officials, along with asking the requestor for background about the request.” In short, without being apprised of the reason for the request, the FAA was denied the opportunity to make a prior, reasoned determination on whether collecting and providing the requested information would be both permissible and appropriate under the laws, rules and policies governing the FAA at the time.
Yet another pertinent point here is that on
No request for Flight Track Data shall be granted unless it is first determined that the request is being made in the interest of aviation safety or efficiency, or for an official purpose by a United States Government agency or law enforcement organization with respect to an ongoing investigation.
In sum, the statements made by the FAA official regarding his views of his actions after he had learned the purpose of the requests, and the FAA’s later establishment of a restrictive policy on responding to such requests, indicate a larger concern about the propriety of the FAA’s response to your requests for information, regardless of whether, in the specific circumstances, the actions of the FAA official did not violate the FAA rules or regulations that were in effect at the time.
Second, it is asserted that the House Committee on Transportation and Infrastructure found no wrongdoing in this matter. In this regard, the report that the Transportation Committee issued on this matter states with regard to the DOT IG’s report, “[T]here were no findings that federal resources were misused or that agency personnel violated any departmental rules or regulations.” Because the Transportation Committee report merely characterizes the findings of the DOT IG, the materials set out above regarding the DOT IG’s report respond to this assertion as well. It should also be noted that it is the Committee on Standards of Official Conduct, and not the Transportation Committee, that has the jurisdiction to make determinations regarding the official conduct of House Members and staff.
Third, your submissions assert that
the information that you sought and that was provided to you is publicly
available over the Internet. Indeed,
according to the statement of the DOT IG, “[C]omparable
information – including near real-time aircraft locator data – is currently
available to the general public through commercial databases accessible via the
internet.” However, the issues discussed
here have arisen because you did not obtain the information on the location of
the particular aircraft from one of the commercial databases, but instead you
obtained it from FAA databases using the services of FAA personnel.
Finally, your submissions assert that these contacts were
proper because they were made in the context of a “legitimate law enforcement
issue.” While acknowledging that this matter arose out of a political dispute,
one of your submissions states that it “was a proper matter for the law
enforcement authorities of
Indeed, this consideration highlights a separate basis on which the contacts with the FAA were objectionable, and that is that such use of federal executive branch resources to resolve an issue before a state legislative body raises serious concerns under the fundamental concepts of separation of powers and federalism. The enforcement of the rules of the Texas House – like enforcement of the rules of the U.S. House of Representatives or any other legislative body – is the responsibility of the Members, officers and employees of that body.
Insofar as
enforcing the rules of the Texas House on Member attendance is concerned, the
rules of that body provide that this is the responsibility of “the
sergeant-at-arms or an officer appointed by the sergeant-at-arms.” Whether it is permissible and appropriate for
the Texas House Sergeant-at-Arms to appoint every official of the Texas
Department of Public Safety as such an officer, as occurred here, is a matter
to be resolved by
* * *
We
note that your response to the Committee’s decision of last week included the
statement, “During my entire career I have worked to advance my party’s
legislative agenda.” Your actions that
are addressed in this letter, as well as those addressed in the Committee’s
decision of last week and in prior Committee actions, are all ones that, in a
broad sense, were directed to the advancement of your legislative agenda. Those actions are also ones that your peers
who sit on this Committee determined, after careful consideration, went beyond
the bounds of acceptable conduct.
As you are aware, it does
not suffice for any House Member to assert that his or her actions violated no
law, or violated no specific prohibition or requirement of the House
Rules. The House Code of Official
Conduct broadly requires that every House Member, officer and employee “conduct
himself at all times in a manner that shall reflect creditably on the House.” It is particularly important that members of
the House leadership, who are the most publicly visible Members, adhere to this
requirement scrupulously. The fact that
a violation results from the overaggressive pursuit of one’s legislative agenda
simply does not constitute a mitigating factor.
In addition, a state criminal
investigation of the 2002 election activities of the Texans for a Republican
Majority PAC, with which you were involved during the period in question, is
underway. While Committee action on
Count II of the complaint regarding those activities has been deferred pending
further action in the state cases and investigation, the Committee will act on
the underlying allegations at an appropriate time.
In view of the number of
instances to date in which the Committee has found it necessary to comment on
conduct in which you have engaged,[2]
it is clearly necessary for you to temper your future actions to assure that
you are in full compliance at all times with the applicable House Rules and
standards of conduct. We remind you that
the House Code of Official Conduct provides the Committee with authority “to
deal with any given act or accumulation of acts which, in the judgment
of the committee, are severe enough to reflect discredit on the Congress.”[3]
Sincerely,
Joel Hefley Alan
B. Mollohan
Chairman Ranking Minority Member
[1]
More generally, under House standards of conduct as set out in Committee
publications, a Member may not make any solicitation for campaign or political
contributions that is linked with any specific official action taken or to be
taken by that Member. 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.
[2] In addition to the two matters addressed in this letter and the conduct addressed in the Committee report of last week, there was the Committee letter to you of November 7, 1997 that concerned, in part, statements that may create the impression that official access or action are linked with campaign contributions, and a confidential Committee letter to you of May 7, 1999.
[3]House Ethics Manual at 12 (reprinting
excerpt from the 1968 committee report on the House Code of Official Conduct
(emphasis added)).