Q:
I am a Senate staffer with a question about earmarks for campaign donors. (By earmarks, I mean federal funds specifically designated for an individual recipient.) I have read allegations that Sen. Mary Landrieu (D-La.) committed an ethics violation by inserting an earmark into the 2002 D.C. appropriations bill that benefited a campaign donor. Because the Senator whom I work for is on the Appropriations Committee, I try to keep him apprised of all the rules governing earmarks. However, I was not aware of any rules forbidding earmarks for campaign donors. In fact, in my experience on the Appropriations Committee, it seems common for Senators to insert an earmark that benefits a campaign donor. Do the rules really forbid earmarks for campaign donors?

[IMGCAP(1)]A: There is no rule explicitly forbidding earmarks that benefit campaign donors. This does not mean, however, that such earmarks are always without risk. Rather, depending on the circumstances, an earmark for a campaign donor might be an ethics violation, or even a federal crime. Moreover, although the law does not require Members to ensure that their earmarks never benefit campaign donors, Members should be aware that when an earmark they propose specifically benefits a major contributor, critics might demand an investigation, as has happened with Landrieu.

The criminal statute in question is the bribery statute, and there are two ways Members can violate it: bribes and gratuities. Under the bribes section of the statute, it is a crime for a Member to seek or receive something of value “in return for being influenced in the performance of an official act.” The key for liability is a quid pro quo. In the case of earmarks, in order for there to be criminal liability, when the Member seeks or receives the thing of value, she must have the specific intent to be influenced in an official act (e.g., a vote) with regard to the earmark in exchange for the thing of value.

Criminal liability under the gratuity section of the statute also requires a causal link, but of a different kind. For gratuities, the statute forbids a Member from accepting something of value “for or because of any official act.” In the case of an earmark, in order for liability to attach, the earmark need not necessarily be in exchange for a thing of value. Rather, it is enough that a Member accepts a thing of value that the Member knows to be given “because of” the Member’s official act with respect to the earmark. Some have said the gratuity section of the statute applies when the thing of value is understood to be a reward for the official act. In either case — bribes or gratuities — there cannot be liability without a link between the thing of value and an official act.

As to a violation of the ethics rules, it is less clear whether a link is required for a violation. In the absence of a rule forbidding earmarks for campaign donors, it seems unlikely that the Senate Ethics Committee would recommend sanctions against a Senator merely because the Senator’s earmark happened to benefit a donor. On the other hand, on at least one occasion, the committee has used the catchall clause prohibiting “improper conduct which may reflect upon the Senate” to condemn a Senator for activity benefiting a contributor even where the activity did not violate a specific rule or statute. In that case, the conduct was not a single earmark for a campaign donor. Rather, it concerned Sen. Alan Cranston (D-Calif.), one of the “Keating Five,” and his alleged two-year effort to influence a government agency on behalf of a major donor.

The Ethics Committee’s scant record of sanctions against linking campaign contributions and official acts suggests a reluctance to take action merely because official acts benefit donors. Similarly, in interpreting the bribery statute, some courts have raised questions about whether campaign contributions should be the basis for a bribery prosecution.

This is not surprising. If campaign contributions could serve as the basis for bribery prosecutions, the line between legitimate contributions and bribery would be difficult to draw. After all, it is hardly unusual for Members and contributors to share interests or policy goals, and therefore for Members’ acts to benefit contributors. What would be unusual would be the opposite: someone donating to the campaign of a Member who opposed the donor’s interests.

Landrieu’s case is illustrative. Last month, a watchdog group requested that the Ethics Committee and federal prosecutors investigate Landrieu for sponsoring a $2 million earmark in the 2002 D.C. appropriations bill for Voyager Expanded Learning just four days after her campaign received $30,000 in contributions from donors associated with the education firm. Landrieu’s office has responded by releasing documents that show her interest in the firm’s reading program dated back many months before the campaign contributions. Assuming the contributions were not in exchange for or because of an official act by Landrieu, under the applicable rules and law, it is difficult to argue that the fact that her earmark benefited a contributor is enough to justify sanctions. But, as Landrieu has learned, it might be enough to draw scrutiny and demands for an investigation.

Clearly, the law does and should prohibit constituents from purchasing federal earmarks. But the law does not prohibit Members and campaign donors from having common interests. The Supreme Court may have summed it up best: To hold that Members commit a crime “when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries … would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the nation.”

C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create any attorney-client relationship.