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Rogers’ Resolution Tests Breadth of Earmark Rules

I am chief of staff for a Member who is among the group of freshmen committed to serious ethics reform. The Member has asked me for advice regarding Rep. Mike Rogers’ (R-Mich.) resolution to reprimand Rep. John Murtha (D-Pa.) for allegedly vowing to deny Rogers earmarks in retaliation for Rogers’ effort to strip a Murtha-backed earmark from the intelligence authorization bill. While the House voted to table Rogers’ resolution largely along party lines, the Member wants me to put politics aside and determine whether the alleged conduct did actually violate House ethics rules. So my question is just that. Assuming the facts are as alleged in the resolution, did Murtha violate the House Code of Official Conduct?

[IMGCAP(1)] A: Because you have asked me to do so, I will assume for the moment that the resolution’s allegations are true. However, I’ll return to this assumption below because I think it raises an issue regarding the use of a House resolution to reprimand a Member without involving the Committee on Standards of Official Conduct.

So, assuming the allegations are true, did Murtha violate the Code of Official Conduct?

The resolution states that Rogers offered and voted for a motion to remove from the intelligence bill a $23 million earmark for a drug center in Murtha’s district. As a result, Murtha, who chairs the Appropriations subcommittee on Defense, is alleged to have yelled at Rogers in the House chamber: “I hope you don’t have any earmarks in the appropriations bills because they are gone and you will not get any earmarks now and forever.”

A supporter of Rogers’ resolution could argue this is a clear violation of the recently adopted rules regarding earmarks. Clause 16 of House Rule 23 states: “A Member … may not condition the inclusion of language to provide funding for a congressional earmark … in any bill or joint resolution … on any vote cast by another Member.” Here, Rogers could argue, Murtha conditioned any future defense earmarks for Rogers upon Rogers’ vote to remove Murtha’s earmark from the intelligence bill.

Murtha might respond that his conduct, at worst, constituted retaliation, which Clause 16 of Rule 23 does not prohibit. Clause 16 concerns conditioning earmarks on a Member’s future vote, he could argue, whereas Murtha’s alleged conduct relates to a past vote by Rogers.

More significantly, Murtha might say, unless Clause 16 was intended to revolutionize the way the House legislates, it can’t possibly apply to an off-the-cuff remark like his, especially one for which he has since apologized. Otherwise, Clause 16 could potentially reach the backroom logrolling and arm-twisting in which Members engage all the time.

So who is right?

In the five months since the new rules package was adopted, Clause 16 of House Rule 23 has received little attention. While the ethics committee has released memorandums clarifying other aspects of the package, it has not addressed Clause 16. In the absence of ethics committee guidance, it is anyone’s guess how it might be interpreted.

On its face, the rule seems to say that a Member “may not condition” a Congressional earmark “on any vote case by another Member.” Does this bring an end to the venerable practice of trading earmarks for votes? May Members no longer gather support for a contested bill by attaching earmarks attractive to the bill’s opposition? Is logrolling a thing of the past? What about the expenditures that were attached to the Iraq war-funding bill to woo opponents?

If trading earmarks for votes is a thing of the past, it is the recent past. As recently as 2004, before Clause 16 became law, an ethics committee report explicitly condoned the practice. The report called logrolling “a longstanding and accepted part of the legislative process” and stated that it is an accepted practice for legislators “to trade legislative votes.” Moreover, “there is nothing improper about a Member’s conditioning support for particular legislation on … future consideration by another Member of an official matter of importance to that Member’s constituents.”

Members have not been shy about trading earmarks for votes. For example, in October 2005, after Sen. Tom Coburn (R-Okla.) challenged an earmark for museums in the home state of Sen. Patty Murray (D-Wash.), Murray opposed Coburn’s challenge on the Senate floor, stating that she would take a long, hard look at the projects of any Members who opposed her earmark. “What is good for the goose is good for the gander,” Murray said. “[I]f we start cutting funding for individual projects, your project may be next.”

Does Clause 16 of Rule 23 change all of this? The legislative history of Clause 16 suggests it might. When the House considered the new rules package in January, the summary of the package in the Congressional Record stated that the change to Rule 23 “prohibits trading earmarks for votes.”

Where does this leave us regarding Murtha? Well, if the clause does ban “trading earmarks” and “arm-twisting for votes,” Murtha’s alleged conduct may well have violated the rules. But, without clarification from the ethics committee, one cannot be sure. However, even if the committee were to conclude that Clause 16 does not squarely capture Murtha’s conduct, the ethics manual states that Members must comply with the spirit as well as the letter of the rules. Usually, it is for the ethics committee to determine whether a Member has complied with the spirit of the rules.

Finally, there is one more reason why it might have made sense to involve the ethics committee in resolving Rogers’ complaint. And this gets back to your request that I assume the resolution’s allegations to be true. The problem with that request is that, without an investigation, the resolution’s allegations are just that: allegations. This is why the more common way to raise an issue of compliance with the ethics rules is not through a privileged resolution but via a complaint with the ethics committee. Had Rogers filed a complaint, the ethics committee could have conducted an investigation to determine the relevant facts and also could have resolved just how far-reaching Clause 16 of Rule 23 really is.

C. Simon Davidson is an attorney in the Washington, D.C., office of McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions are not confidential and do not create any attorney-client relationship.

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