U.S. Rep. Pete Visclosky, D-1st, was one of two U.S. House members—of the seven investigated by the Office of Congressional Ethics for their dealings with The PMA Group—who refused to be interviewed by OCE investigators.

And it was Visclosky’s refusal to be interviewed—specifically, his refusal to discuss his office’s rationale for supporting earmark requests made by campaign contributors associated with PMA’s clients—which prompted the OCE to conclude that “There is probable cause to believe that Rep. Visclosky solicited or accepted contributions or other items of value in exchange for or because of an official act.”

So reveals the OCE’s report on Visclosky, released by the House Committee on Standards of Official Conduct on Friday, when it formally announced its determination that no “House member or employee violated any law, regulation, rule, or other applicable standard of conduct.”

In December the OCE recommended that the Standards Committee conduct its own investigation of Visclosky and one other member who declined to be interviewed by OCE, U.S. Rep. Todd Tiahrt, R-Kan. The OCE, on the other hand, did recommend at the time the dismissal of the cases of the five other House members, including the late John Murtha, D-Pa., who had opted to be interviewed by the OCE.

On Friday the Standards Committee concluded that investigation and cleared Visclosky and Tiahrt of any wrongdoing, after finding “no evidence that members or their official staff considered campaign contributions as a factor when requesting earmarks.” Neither did the Standards Committee find any evidence that “members or their official staff were directly or indirectly engaged in seeking contributions in return for earmarks.”

The crux of the OCE’s report on Visclosky is a timeline:

•On Jan. 15, 2008, Visclosky’s former appropriations director sent an e-mail notifying companies which had previously contacted the office about earmark requests that any such requests must be submitted to Visclosky by Feb. 15, 2008.

•On Feb. 27, 2008, Visclosky’s campaign manager sent a campaign contribution solicitation “to a select group of entities”: those “requesting support from Rep. Visclosky on a defense issue.” The OCE said that both PMA and PMA clients received this campaign contribution solicitation.

•On March 12, 2008, Visclosky hosted a fundraiser “specifically for PMA clients and other defense contractors requesting earmarks.” The OCE notes that a PMA client who had attended a similar fundraiser in 2007—at which he had been given an “‘honorary’ seat at the head table sitting directly adjacent to Visclosky—later told his company’s employees that “this opportunity to spend more than two hours with the congressman and his staff . . . would not have been possible without your generous contributions to the member.”

•On March 19, 2008, Visclosky requested earmarks totaling $14.4 million for six PMA clients, three of whom had donated $33,300 to his campaign committee in the same month.

The OCE states that this timeline “is primarily relevant to the allegation that Rep. Visclosky solicited or accepted contributions in a manner which gave the appearance that the contributions were linked to an official act.”

But because Visclosky and his staff declined to be interviewed, the OCE adds, “the evidence is incomplete as to whether he in fact solicited or accepted contributions in exchange for or because of the earmark requests.”

The OCE did observe, however, that whatever Visclosky may have thought, some PMA clients were linking “contributions to his campaign to specific legislative acts.” Thus in an e-mail the vice-president of the Sierra Nevada Corporation “justifies a $20,000 contribution to Rep. Visclosky because “(w)e have gotten over 10M in adds from him,” the OCE’s report cites.

The OCE concludes that “Visclosky’s actions” at the March 12, 2008, fundraiser were similar to those of another member previously admonished by the House Ethics Committee “because: (1) the timing of the fundraiser was one week before he took official action on behalf of donors; (2) the attendees at the fundraiser were limited to defense contractors with pending earmark requests before Rep. Visclosky; and (3) Rep. Visclosky’s chief of staff and appropriations director attended the fundraiser.”

In a letter dated Dec. 28, 2009, Visclosky’s legal counsel, the firm of Steptoe & Johnson, urged the OCE to dismiss the case on several grounds. In particular, Steptoe & Johnson argued that Visclosky, in declining to be interviewed by the OCE, merely invoked his constitutional “Speech or Debate Clause privilege” as a House member which “protects members from being questioned about legislative acts and from disclosing the motivation of legislative acts to the Executive Branch.”

“The counsel of Rep. Visclosky asked for assurances that portions of the interview covering privileged legislative matters would be kept confidential with the Legislative Branch,” the letter states. “OCE refused to provide such assurances and instead stated that OCE would prepare ‘a memorandum of the interview’ and that the memorandum ‘would likely be made public under mandatory disclosure rules.’”

The letter also maintained that the “critical information” sought by the OCE in any interview would have been a “clear explanation of how Rep. Visclosky and his staff determined which requests the member supported.”

But the whole point of the Speech or Debate Clause is to protect members from “the chilling effect that would be caused by having to disclose to the Executive Branch their motivation for supporting and drafting legislation,” the letter states.

On Monday a Visclosky spokesman declined comment when asked by the Chesterton Tribune why Visclosky opted to invoke his Speech or Debate clause privilege on this occasion, when in hundreds of press statements released over the course of a year Visclosky goes to great lengths precisely to explain his motivation in supporting or drafting a particular piece of legislation.

Steptoe & Johnson also maintains that the OCE just got wrong the legal precept of probable cause. “Evidence of an explicit quid pro quo is required to find that a member’s acceptance of a campaign contribution amounts to bribery,” the letter states.

Nor does the OCE “cite a specific House rule (which) Rep. Visclosky is alleged to have violated,” the letter adds.

Visclosky’s fundraising activities “are examples of typical fundraising practices that members have historically engaged in on a widespread and routine basis without recrimination,” the letter states.

Last year Visclosky’s campaign committee spent a total of $240,253.68 in campaign funds to cover Steptoe & Johnson’s legal bills, according to filings with the Federal Election Commission.

In clearing Visclosky and his colleagues of any wrongdoing, the Standards Committee did “uncover troubling aspects to PMA’s conduct,” though, including “instances in which PMA employed ‘strong-arm’ tactics, threatening to withdraw financial support or encourage businesses to relocate out of a member’s district if members did not reverse policies opposing earmarks,” the Standards Committee’s own report states.

“In these instances, members and their staff refused to change their positions and, in one case, notified the Standards Committee,” that report notes.

In addition, the Standards Committee found “that there is a widespread perception among some corporations and lobbyists that campaign contributions provide enhanced access to members or a greater chance of obtaining earmarks. However, the record indicates that members, by and large, take great care to separate their official and campaign functions, particularly with respect to earmark requests.”

Posted 3/2/2010