Addressing Corruption & Ethics in Government

1. Addressing Corruption & Ethics in Government CWB 1.2.2 Part 1: Context

2. What is the Authority of Law? • U.S. Constitution: Supreme Law of Land • Congress Passes laws codified as statutes • Delegates authority to Federal Agencies to Implement law. • Serve a particular interest or constituency. • Executive Executes laws via Executive Orders • Guidelines to Justice Department re enforcement of laws. • OMB oversight of budget of federal agencies. • Judiciary Interprets laws • Only hears what comes before it • Can set aside, remand back to agency, or affirm. • Right and Scope of judicial review defined by Statute. • Decision can be “As applied” or “establish precedent”.

3. Constitutional Authority

4. Legal Remedies Elect someone else; Change in party representation; Criminal actions where violation of law; Censure; Sanctions Judicial Review of decisions; Congressional action to restrict; Impeachment; Practical Effect Remedial vs. preventive; Burden on victims or special interests to challenge; Public opinion makes it clear lack of tolerance; and Protracted legal process for legal remedies gives Gov. time to achieve goal; i.e., detention, intelligence, & war. Remedies for Abuse of Executive Authority

5. Problem for Case Studies • If the United States wants to remain a world leader in this global society, what ethical standards must we set for our political representatives? • Context: Legislative authority to delegate to other branches or reserve oversight.

6. Standards for Ethical Conductfor Legislature • What requirements of a branch system of checks & balances must be upheld? • Preserve broad delegation of authority. • Preserve congressional oversight and accountability.

7. Case Study: Toward National Voting Standards • To prevent ethical misconduct need: • Uniform standards re methods to register, vote, count votes, recounts. • Cooperation among states, funding subsidized by Federal government, with appropriate audits, oversight & reporting. • Educating public on rights and recourse. Bottom line: Intergovernmental cooperation

8. Problem for Case Studies • If the United States wants to remain a world leader in this global society, what ethical standards must we set for our political representatives? • Context: Executive authority to act independent of other branches.

9. Standards for Ethical Conduct for Executive Branch • What requirements of a branch system of checks & balances must be upheld? Government Generally • Preserve an independent judicial branch. • Preserve two-party political system in government. • Ensure a person’s vote is counted.

10. Equal Protection Under the Law…. Part 2: Black Facts

11. Premise of Constitution “Self-evident truths that all men are created equal and endowed by the Creator with inalienable rights, including Life, Liberty, and the pursuit of Happiness.” Thomas Jefferson Is this descriptive or aspirational?

12. Why Study History? Gives You a Reflection of What is To Be..

13. And We Are Not Saved • U.S. Constitution in an historical context Framer’s intent (1789 Rat.) • Bill of Rights (1790) • “Racism in America is part of the common historical experience, and, therefore is a part of our culture; based upon assumptions about ourselves & others and patterns of social activities.” • Slave Trade (1661-1865) • East European Immigrants- Slavery of women until Mann Act • Generation X is perhaps the first to cut through lines that separate races. • Interracial marriage or Miscengenation • Influx of Immigrants from SE Asia; India; Middle East • “New Citizens” are All Persons of Color

14. Constitutional Accommodations 1789

15. Ethical Violations (1797-1842)

16. Reasons it Prospered Free labor to work plantations; Owners prospered with low overhead; Slaves were Property with value, who could be bought and sold; Numbers increase through slave breeding plantations; Slaves had no rights, or protections, except what was given by owners. Counted as 3/5th person for census for congressional districts. Obedience was enforced through violence, death. Causes for its Demise Not voluntary servitude or imposed by law; Kidnapped & forced through violence; Over time, close proximity, codependency & necessity gave way to personal relationships that defied laws that supported slavery; Absence of liberty lead to a struggle, revolt, that ultimately ended in civil war; Civil war forced South to arm slaves at the end to fight for South; Fighting in war vested Blacks in freedom; Unions via rape, marriage, relations changed moral case Slave Trade

17. How Slaves Became Free? • Paying off debts as indentured servants; • Buying freedom; • Offspring of Master who set free (age, or death); • Emancipation Proclamation

18. Black Facts: Slavery Under the Law (1865-1890)

19. Reason for Increase in Number of Free Blacks 1) Children born of free colored persons 2) Mulatto children born of free colored mothers; 3) Mulatto children born of white servants; 4) Free Blacks and Indian parentage; & 5) Slaves buying or granted freedom.

20. Black Facts: Slavery Under the Law (1865-1890)

21. Reasons for Persistence of Racism • Ineffective enforcement of civil rights and voting rights laws; • Social & Political Hierarchy is based upon one being in superior position over another; • Correlation between economic disparity and access to and success in system; • Ignorance, intolerance, fear of what is unknown or known by stereotypes; • Personal relations trump governmental mandates; and • Violence and intimidation reinforced racism.

22. Government Intervention • When there is a popular will sparked by a moral consciousness to act; • Evidence of gross abuse & misconduct by officials in defiance of rules; • Threat to the federal union; • Likely to cause economic instability; and • To restore and maintain law & order .

23. Addressing Corruption Today:House Ethics Committee Part 3:Background & Rules

24. Questions to Answer 1) Is the separation of power doctrine effective when it comes to ethical misconduct and corruption within the executive branch and Congress. Explain your answer. 2) Who should have the authority to appoint the IC: the Attorney General, members of Congress, and/or the Judiciary. 3) What types of limits should be placed upon the scope of investigations by the IC and do any of the proposals adequately address the problem.

25. Defense contracts fraud Foreign military sales fraud Government contractor fraud Medicare, Medical and Medicaid fraud Quality Assurance and Test Falsification Product Substitution GSA Services and Supply Utilities fraud Telecommunications fraud HUD fraud Shipbuilding Weapons systems Anti-terrorism Airport Construction USDA fraud Postal Fraud Building and Roadway Construction Energy contract fraud Food and Drug Administration Military procurement Fraud Against the Government Source: Whistleblowers Center

26. Potential Ethical Violations By Elected Officials • Influence peddling: Receiving value for influence in contract, legislation, voting, & committee oversight. • Nepotism: Giving jobs to family without proper disclosure. • Cronyism: Giving contracts, jobs, appointments to friends and family without following procedures, notice, and recusal. • Fraud: Actions involving intent to deceive. • Perjury: Misrepresentation in communications before official meeting or hearing. • Conflict of Interest: Use of office for personal gain. • Sexual Harassment: Use of office to obtain action or reaction from a subordinate or another; includes advantage, exploit, misuse, threats of loss for sexual favors.

27. PAC Influence • Over the last two years, 300 PAC controlled by lawmakers raised about $156 million. • Only 1/3 of monies used for political campaigns • Sponsor vacation-like fundraising events for lobbyists and lawmakers.

28. Democrats Republicans Executive Special Interests Public Currently control both Houses ’07;  Significant presence; control White House, Bush asserts strong Executive power Lobbyists-Need Rules of engagement Watchdog Organizations-Process for oversight and standing. Mission to disclose corruption; distrustful of government Players

29. House Ethical Violations 109th-110th Congress -Tom Delay (R-Tx) reprimanded twice by House Ethics Committee in 2004-2005, leading to an indictment and resignation for influence peddling and improper contributions during 2002 Texas election. -Jack Abramoff, Republican lobbyist is indicted on wire fraud for bribery. Influence peddling re Indian casinos. - Duke Cunningham (R. Ca) resigned after guilty of taking $2.4 million in bribes for Pentagon contracts. -Mark Foley (R-Fl) Sex emails to pages forced resignation. -Rep Rob Ney (R-Oh) Accepting bribes re House Admin. Comm.

30. Ethics Action vs. Rep.Tom Foley

31. +Can’t accept gifts & meals from lobbyists +Public reporting by lobbyists in searchable database. +Prior approval (temp) for trips (lodging & transport) paid for with private money. -Disclosure report on private aircraft re purpose and attendees. -Lobbyist ban vs. contacting family of members and staff. -> fines from $50K-$100K -Pt of order re earmarks or projects later attached to bill. 60 senators must vote to keep. -Bans secret “holds” on bill. Must disclose that blocking action on bill. Exceptions: -Private funded travel ok -Can fly on corporate jets at reduced price -Earmarks okay for pet projects Senate Ethics Reforms (3-’06) (GOP-lead bipartisan 90-8 )

32. -Ban lobbyists from paying directly for meals, trips, stadium box seats, or discounted seats on private jets. -No gifts by lobbyists to congresspersons Exceptions -Ok to make contributions to PAC committees who organize fundraising. -Political contributions ok but subject to FEC rules. -Paying to attend a fundraiser ok -Restrictions N/A to personal PAC use of funds. 110th Congress Ethics Reforms (2/11/07)

33. -Tom Delay (R-Tx) reprimanded twice by House Ethics Committee in 2004-2005, leading to an indictment and resignation for influence peddling and improper contributions during 2002 Texas election. -Jack Abramoff, Republican lobbyist is indicted on wire fraud for bribery. Influence peddling re Indian casinos. - Duke Cunningham (R. Ca) resigned after guilty of taking $2.4 million in bribes for Pentagon contracts. -Mark Foley (R-Fl) Sex emails to pages forced resignation. Resigned. Trial on indicted offense pending ’07. Convicted & sentenced to 5 years, 10 mo (3/06) Sentenced to 8 years. (3/06)  Treatment for alcohol abuse; admitted homosexual. House ethics found members did not protect male pages, but broke no rules. (2/07) Disposition of House Ethical Violations

34. Whistleblower Protections Part 4

35. Definition of a Whistleblower An employee who refuses to engage in and/or reports illegal or wrongful activities of his employer or fellow employees. Black’s Law Dictionary

36. Reluctant & not intend to be whistleblower Assume someone will shake their hand & thank them. Don’t expect retaliation. Once started, not willing to back down. Employers often take a hard line which forces a fight, and maybe settlement. Don’t know that termination will end job, and maybe profession. Later have regrets or wonder if it was worth it. Become “toxic” to friends & coworkers. BOTTOM LINE: CAN UNILATERALLY BRING A COMPANY DOWN, CHANGE CULTURE, FORCE REMEDIAL LAWS Profile of Whistleblowers

37. False Claims Act, 31 USC 3730(h) • Person discharged, demoted, suspended, threatened, harassed or discriminated against because of lawful acts is entitled to all relief necessary to make whole. • Requires • 1) protected conduct, • 2) notice to employer that assisting Government in investigating actions, • 3)Termination in retaliation of actions.

38. Whistleblower Protection Laws • Federal laws: Individual can make a complaint or charge of retaliatory discrimination to a federal agency. • Often limit to administrative actions via US Dept of Labor; • ALJ is the fact finder; • Several category of exemptions, e.g., Department of Homeland Security; • Limited judicial review • Short statute of limitations, e.g., 30 days

39. Whistleblower Protection Laws

40. Protection • In 2005 House considered bill to strengthen Whistleblower protections for government employees. • Executive sought to exempt staff of Dept. of Homeland Security from whistleblower protections. • Pulled from agenda at the last minute. GOP did not want public debate of issue. • FBI, CIA, Defense Intelligence Agency, National Imagery and Mapping Agency, and National Security Agency have never had whistleblower protection.

41. Bush Waives Whistleblower Protection for Staff under Clean Air Act • 9/06: Bush claims government is immune from claims under Clean Air Act. • Effect: federal workers have little protection from official retaliation for reporting water pollution enforcement breakdowns, manipulations of science or cleanup failures. • 170,000 federal workers affected. • Reverses nearly 20 years of precedent. • EPA claims no protection for its employees under Clean Air Act; Safe Drinking Water Act. • Basis: Unpublished Atty. Gen. Report

42. Watchdog Groups • Citizens for Responsibility and Ethics in Washington (Melanie Sloan, Exe. Dir.) leaked Foley emails • Common Cause (James Benton) • Democracy 21 (Fred Wertheimer)

43. Watchdog Groups • Purpose & organizational documents establish scope of focus. • Not-for-profit organizations who can educate, but cannot lobby. • Legal resources to file actions vs agency. • FOIA requests; investigative work; contacts.

44. Negotiated Rulemaking APA Section 561-570 • An advisory group of stakeholders who reach consensus on a rule and then government puts out as NPRM; • Gov. does not undertake independent review • Need has to be established where identifiable stakeholders and likelihood that compromise can be reached; • Settlement agreement becomes rule proposed by the agency. • Increasingly used more often to reduce time and delay. • Key is that parties are seeking some consensus • The discretion to use, establish or terminate a negotiated rulemaking shall not be subject to review.

45. Process to Appoint SPRole of Attorney General • AG conducts the preliminary investigation and shall make a determination within 90 days; • No authority to convene a grand jury, plea bargain, grant immunity or issue subpoenas; • State of mind is not to be considered; • AG notifies the court, and if no reasonable grounds to believe further investigation; • AG can apply to the court to appoint if there are reasonable grounds,

46. Appointment of Independent Counsel • Has full power and authority to investigate and prosecute functions and powers of the Department of Justice and the AG • Can convene grand juries; • Participate in court proceedings and engage in any litigation, appeal any decision of a court in any case; • Review all documentary evidence available from any source; • Determine whether to contest assertion of any testimonial proceedings, receiving appropriate national security clearances, making applications to any grant for a grant of Immunity of any witness, inspecting obtaining or using tax return, initiating or conducting prosecutions in any court of competent jurisdiction; • Consult with the U.S. attorney general for the district.

47. Congress Has Oversight • Oversee the conduct of IC; • Receive a report from IC; and • House may advise on impeachment recommendations.

48. Case Study: Addressing Corruption Proposed Bipartisan Changes Appointment • Allowing the Attorney General (AG) to consider an official's intent in determining whether to investigate; • Court appoints the IC from a roster of predetermined list of persons approved by the AG; • Creating a two-step process where the Attorney General will appoint and the Special Division will confirm an IC; Scope of Investigation • Reducing the number of officials covered by the law; • Redefine covered persons to focus on discreet vs. general conduct that focuses on manner in which they conduct; • Empower Department of Justice at preliminary investigation state with subpoena power, change the time limits to allow a more thoughtful preliminary investigation, use notice requirement so work can continue;

49. Case Study: Addressing Corruption Proposed Bipartisan Changes Disposition of Investigation • Eliminating the Independent Counsel (IC) final report; • Impose the burden of proof on the Independent Counsel to prove by substantial evidence, the existence of criminal activity; • Announce closure on issues at it happens.

50. Next Steps • Break into groups representing: Democrats, Republicans, Executive, Special Interests-Watchdog Special interests-PAC, Lobbyists • Answer the 3 questions as a group; Negotiate which of the proposals should be addressed & make recommendations (up to 3 proposals) • Reconvene with Groups 1,2,3,4