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Ethics Committee Issues Earmark Conflict Rules

The House ethics committee issued broad guidance Tuesday on the chamber’s new earmark disclosure rules, indicating that common sense is the best barometer to determine whether a Member has a direct financial interest in an earmark request.

“Whether a Member or a Member’s spouse has a financial interest in an earmark will most frequently depend on the specific facts and circumstances regarding both the proposed provision and the personal financial circumstances of the Members and spouse,” wrote ethics Chairwoman Stephanie Tubbs Jones (D-Ohio) and ranking member Doc Hastings (R-Wash.). “In the great majority of cases, Members should readily be able to determine whether they have a financial interest in an earmark.”

Bipartisan concerns have been raised in recent weeks as rank-and-file lawmakers set out on the perennial task of making their earmark requests to the Appropriations Committee. The confusion prompted Appropriations Chairman David Obey (D-Wis.) to extend the annual deadline for those submissions from March 16 to April 27 in response to a request by ranking member Jerry Lewis (R-Calif.).

In particular, Members have expressed confusion over new rules that require Members to certify that neither they nor their spouse stand to benefit financially from their earmarks — but the new rules do explicitly define “financial interest.”

One example often cited by Members is whether earmark requests such as road projects constitute a financial interest because they could have the effect of raising the property value of a Member’s private home in the district.

The earmark reform rules fall under the code of conduct provisions in House rules that are part of the Committee on Standards of Official Conduct’s jurisdiction, and any violation of the disclosure requirement could prompt an ethics inquiry. The Appropriations panel has been directing inquiries on the disclosure rules to the ethics panel.

Since earmark requests have different implications across authorizing, spending and tax-writing panels, the ethics committee did not offer many specifics in its three-page guidance memo available to the public, known as a “pink sheet.”

Rather, the panel suggests that any Member with “fact-specific” earmark concerns should seek guidance from ethics before proceeding with a request.

The pink sheet broadly defines financial interest in an earmark “when it would be reasonable to conclude that the provision would have a direct and foreseeable effect on the pecuniary interests of the Member or the Member’s spouse.”

The panel said those interests include a Member’s “financial assets, liabilities, or other interests of the Member and spouse, such as ownership of certain financial instruments or investments in stocks, bonds, mutual funds, or real estate.” Financial interests also can “derive from a salary, indebtedness, job offer, or other similar interest.”

The ethics committee said a financial interest is not applicable if it affects only “remote, inconsequential, or speculative interests.”

As an example, the panel states that Members “generally” would not have a financial interest if they were to seek an earmark that benefits a company in which they have a mutual fund, employee benefit plan or pension plan that holds stock in that same company.

The panel said that, in general, accepting campaign contributions from an entity that may benefit from an earmark does not constitute a financial interest, but cautions that any campaign contribution in exchange for an official act could constitute bribery or some other legal offense.

“If a Member determines that he or she has a financial interest in an earmark, the Member should not request the provision, nor ask another Member to request the measure on his or her behalf,” the panel said.

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