Joe Sestak’s “Bribe” Scandal: Another Ethics Sideshow

 

The press is reporting continued controversy -- and threats of a Congressional ethics compliant -- over the White House having previously offered a political appointment to Congressman Joe Sestak “in return” for his agreeing not to run in the Pennsylvania Democratic primary against Democratic (formerly Republican) Senator Arlen Specter.   Whatever offer the White House made, it didn’t work, and Sestak went on to win the primary.

 

“Nice try” is what I would say to the White House.  I would prefer if the White House were to stay out of Democratic primaries and focus on the tasks at hand.  Then again, President Bush occasionally intervened in Republican primaries (including on behalf of Senator Specter in 2004).  The less partisan politics in the White House the better (I would like to see the President abolish the White House Office of Political Affairs).  This, however, is nothing new and it hardly rises to the level of a major ethics controversy.

 

The allegation that the job offer was somehow a “bribe” in return for Sestak not running in the primary is difficult to support.  Sestak, if he had taken a job in the Administration, would not have been permitted to run in the Pennsylvania primary.   The Hatch Act prohibits a federal employee from being a candidate for nomination or election to a partisan political office.  5 U.S.C. § 7323(a)(3).  He had to choose one or the other, but he could not choose both.

 

The job offer may have been a way of getting Sestak out of Specter’s way, but this also is nothing new.  Many candidates for top Administration appointments are politically active in the President’s political party.  Many are candidates or are considering candidacy in primaries.  White House political operatives don’t like contentious fights in their own party primaries and sometimes suggest jobs in the Administration for persons who otherwise would be contenders.  For the White House, this is usually a “win-win” situation, giving the Administration politically savvy appointees in the Executive Branch and fewer contentious primaries for the Legislative Branch.  This may not be best for voters who have less choice as a result, and Sestak thus should be commended for saying “no”.  The job offer, however, is hardly a “bribe” when it is one of two alternatives that are mutually exclusive.

 

Some have suggested that Sestak disclose the details of his discussions with the White House about an Administration job.  Generally, such discussions are highly confidential, as employment negotiations often are (the Bush Administration took care to prevent leaks about potential appointees and we were usually successful).  Although Sestak has no legal obligation of confidentiality, he should get permission from the White House before disclosing further details.  If the White House were to consent to disclosure, that would be the exception rather than the rule.  At this juncture, disclosure would probably help defuse the controversy, but this is a call for the White House to make.

 

Sestak’s Republican opponent in the Senate Race is Pat Toomey.  Toomey was a college classmate of mine and I think highly of him; he is a strong candidate with good ideas about reducing the size of government.  Joe Sestak also is a strong candidate, although in a very different way.  Pennsylvanians should vote for Toomey or Sestak on the merits if they believe one or the other to be the most qualified for the Senate, not because dubious ethics allegations are made against an opponent or against the White House.  Congress gives us plenty of genuine ethics concerns to worry about – particularly the role of campaign contributions which are de facto “bribes” (watch carefully what happens to the banking reform bill when it goes to House-Senate conference).  Voters should not be distracted by media generated sideshows having little to do with what goes on in Washington.

Comments

[John Steele]

Richard,

Perhaps you can help me better understand the claim that the offer is "highly confidential." On what basis? He's a candidate for public office and the offer was made with the intent of affecting the race. Moreover, it's not "highly confidential given that he's publicly acknowledged the offer. How can he tell us about the offer but also say that it's highly confidential?

[Richard Painter]

Generally, these discussions are kept confidential for a number of reasons, including protection of the deliberative process inside the White House. I am not opining here as to whether the discussions are the subject of executive privilege (a doctrine that I believe should be narrowly construed), just that these discussions are usually kept confidential by the White House and that potential appointees are expected not to talk about these matters freely.

Sestak has already talked about it more than I believe he should have, and he should defer to the White House on what more to say. As I mentioned in my post, at this juncture the White House might best clear things up by disclosing the specifics.

Richard

[Jim Fischer]

In People v. Hochberg, 404 N.Y.S.2d 161 (1978) the defendant, a member of the New York Assemble, has his conviction affirmed. The conviction was based on his offer to an opponent to secure a job for the opponent if the opponent would not run against the dfendant. California Election Code Section 18205 provides that a "person shall not...advance, pay, solicit, or receive...any money or other valuable consideration...in order to induce a person not to become or to withdraw as a candidate for public office...." I don't know if Pennsylvania has an equivalent statute. I agree with the commentary that most persons believe that the alleged acts of the Obama administration are commonplace; however, the legality of the practice is far from a foregone conclusion.

[Richard Painter]

And yet another aspect of this:

If the GOP insists on disclosure here by a Member of Congress, the next step is that the Democrats will insist that all Members of Congress who interviewed with the Bush Administration disclose that fact and what was said in the interview. The GOP will ask for similar disclosures about job interviews during the Clinton Administration and so forth. Perhaps we will work our way all the way back to LBJ, a man who surely understood the meaning of quid pro quo.

Unlike this situation, most Members of Congress are in a position to take a job offer from the President and then exercise discretion over whether or not to give the President what he wants (a vote on a bill, etc.). Here, because of the Hatch Act, the Member had no discretion; if he took the job the President would automatically get him out of the Senate primary.

Arguably we should have a rule that all Members of Congress immediately disclose any contacts from the White House about Executive Branch appointments, although this would surely cut back on the number of such contacts.

This should, however, have nothing to do with the Pennsylvania Senate race.

[John Steele]

Richard,

Speaking just for myself, I don't see the confidentiality argument, at all. Boiled down, it sounds like "this White House would rather than people not know about the offer." I'm sure that they wouldn't. But once Sestak is asked, he should either say, "I won't tell you if an offer was made or not," or "here's what happened . . . . " Once he publicly revealed the offer, the principal for whom the offer was made, and what it was in exchange for, there's no basis other than "avoiding embarrassment" to refuse to answer who the agent was.

[Richard Painter]

As I have pointed out, there may be a reason here to depart from the confidentiality norm, but that is a call for the White House to make not Sestak (although he legally can disclose if he wishes, I think he should leave that decision to the White House).

I wish the White House would stay out of state primaries and indeed Congressional races altogether. I made that argument in my book on government ethics. The problem is that the White House does not agree and there is no legal prohibition on the intermeddling.

The cases cited involve a quid pro quo. I fail to see the quid pro quo here when the person has no choice but to desist from partisan political activity if he takes the job.

[Jack Marshall]

Is there no difference between a White House official saying, "Joe, we have a job for you at the White House" and saying, "Joe, we want you out of the primary. If you agree not to run, we'll have this nice appointment for you"? I agree that they both accomplish the same thing, but the second offer is presented as a quid pro quo, and that's apparently what Sestak heard. Does that matter?

[Richard Painter]

How about, "Joe, we have this nice job for you. As you know, if you accept it, you will be required under the Hatch Act to withdraw from the primary, which is fine with us. Indeed that is one of the reasons we are offering you the job. We know that you cannot legally take the job and stay in the primary and we want you out of the primary."

When I was the White House ethics officer, I would have refused my approval for an appointment or nomination of any person who insisted on staying in a partisan primary or election. My motivation would have been complying with the Hatch Act. I would not have cared about the politics of the primary. But I still would have said “You cannot take the job and be in the primary. It’s either or, just as you cannot go to work in the Treasury Department and keep your Goldman Sachs stock. It’s either or. It’s the law. You make up your mind.”

Instead of the White House ethics officer saying this, it is someone from the White House political affairs office with a lot of editorializing about how they want him out of the primary anyway. Does this make it a bribe? I just don't see that. If so, the ethics officer also should be worried about taking the position I just described.

If this is the case, nobody who is considering entering a partisan primary or election should be considered for a job in the Administration. Otherwise, the White House is stuck between the Hatch Act and the bribery statute with nowhere to go but up to the Hill for yet one more Congressional investigation of unethical conduct.

[harrassee]

I agree with the author. It would be simple to just offer a job to Sestak (the "quid") without asking for ("pro") something in return (the "quo"). But the fact that the parties involved are acting so secretly, hiding what most pundits say is common and legal, just raises eyebrows. Why can't the admin just come clean? Because it has something to hide (whether outright illegal or simply embarrassing) . . . or at least that is a logical assumption.

Obama is creating his own controversy. Just come clean! Provide the transparency that you promised!

[Nathaniel]

18 USC 595: "Whoever, being a person employed in any administrative position by the United States [...] uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the [...] Member of the Senate [...] shall be fined under this title or imprisoned not more than one year, or both."

18 USC 600: "Whoever, directly or indirectly, promises any employment, position, compensation, [...] or other benefit [...] for any political activity or for the support of or opposition to any candidate [...] in connection with any primary [...] shall be fined under this title or imprisoned not more than one year, or both."

[David Larsson]

Good post, thanks for injecting some sanity, at least on the legal side of this discussion. I find 18 USC 600 to be surprisingly broad, and I see that it's been around since 1948. Let's start with the obvious ones: did Pres. Reagan, "directly or indirectly," suggest to G.H.W. Bush that, despite the latter's distate for voodoo economics, he would give him a job (the vice presidency) in exchange for his support in a presidential election? Or ditto Pres. Clinton and Al Gore? I'm with you, if we're going to construe the statute this way, there's going to be lots of rocks to turn over.

[John David Galt]

I fail to see why this conduct should not be treated as a serious crime, or for that matter, why such an offer should ever be allowed to be hidden from the public. Most of the decisions Washington makes are probably the result of bribes, especially under a president well-known to have taken bribes from a certain Chicago real-estate developer before he even came to Washington.

Where is J. Edgar Hoover when we need him? We're becoming a banana republic.

[Richard Painter]

18 USC 595: "Whoever, being a person employed in any administrative position by the United States [...] uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the [...] Member of the Senate [...] shall be fined under this title or imprisoned not more than one year, or both."

This provision could be interpreted to prohibit any official decision that is motivated by a desire to affect the outcome of an election: tax cuts, construction projects in certain districts, other government contracts that bring money into certain districts, hiring decisions, military deployments, etc. Such an interpretation does not hold water because much of what elected officials and the people who work for them do is motivated by elections. Trying to sort out whether the motivation was principally political would immerse the courts into political questions in which they have no business.

The only workable application of the statute -- and the context in which the statute is actually enforced -- focuses on objective bright lines such as official capacity endorsement of a candidate, use of government funds for partisan political activity, etc. The subjective, motivation approach to interpreting the statute does not work and has not been implemented.

18 USC 600: "Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party . . . "

This statute also could be interpreted broadly to prohibit political appointments being given after an election to campaign workers in part because of their campaign work. It is not interpreted and certainly is not applied in that way. The statute can be applied when there is an explicit quid pro quo. If you do this (political work), we will do this (government job). I doubt there is any precedent for applying this to a request that a prospective appointee not participate in a partisan election as a candidate. Indeed, as I have explained before the Hatch Act prohibits a full time Executive Branch employee from running for office in a partisan election. The White House ethics lawyer or someone else will ask all successful job applicants to stand down from candidacy for elected office.

[Matt S]

Good post, Richard. A person is being either ignorant or dishonest if that person suggests that offering a prominent position to one of two potential primary opponents is anything new. It's something that both Dems and Republicans have done for years. There were reports that Bush offered Kay Bailey Hutchison the position of Ambassador to the Court of St. James in order to keep her from challenging Perry in the Texas governor primary in '06:
http://www.burntorangereport.com/mt/archives/2005/05/ambassador_hutc.html

I think something similar happened with Sununu/Smith in '02 in New Hampshire. I'm sure there are a million other examples. Sestak was just an idiot for saying out loud what happened, but a presidential administration offering someone a job in the hopes of luring them out of a contested primary is hardly a new phenomenon.

[D]

Ronald Reagan made a similar offer to a candidate, California Sen. S.I. Hayakawa. The November 25, 1981 Associated Press article: http://www.themoviedownloads.net

Have conservative pundits calling of Obama's blood conveniently forgotten this fact? Or are ignorant of it? Because if you exclude a cynical omission in order to score political points (and they'd never do that) then those are two options you're left with.