BY HAND DELIVERY
Office of the General Counsel
Federal Election Commission
999 E Street, N.W.
Chief
Public Integrity Section
Criminal Division
U. S. Department of Justice
Re: Complaint Against Representative Tom DeLay of
the 22nd Congressional District of the State of
Dear Sir/Madam:
I.
INTRODUCTION.
Judicial Watch, Inc.,
(hereinafter “Judicial Watch”) is a non-profit, public interest law firm that
investigates and prosecutes government abuse and corruption. Judicial Watch, in the public interest,
hereby submits this complaint to the Federal Election Commission and the
Department of Justice against Representative Tom DeLay of the 22nd
Congressional District of the State of
1.
2
U.S.C. § 431 et seq. (Definitions).
2.
2
U.S.C. § 434(b) (Reporting requirements).
3.
18
U.S.C. § 201 (Bribery of Public Officials and Witnesses).
4.
18
U.S.C. § 600 (Promise of employment or other benefit for political activity).
5.
11 C.F.R. § 104.3
(Contents
of reports).
II. FACTS.
A. Press Report
Concerning Apparent Illegal Political Fundraising.
The facts of this complaint are set forth in an
“The House Republican whip, Tom DeLay, is promising
meetings
with top Bush officials to small business owners
whose
donations would underwrite a GOP ad campaign promoting
the president’s tax plan.”
“‘I am
asking you to serve as an honorary member of our
new Business
Advisory Council,’ DeLay , a staunch opponent
of campaign
finance reform, says in recorded telephone calls
being made
to businessmen around the country.’”
“‘As an
honorary member you will be invited to meetings with top
Bush
administration officials where
your opinions on issues like tax
reform will be heard,’ his call promises.”
(Emphasis added).
* *
*
“People
familiar with the fund drive say it is part of an effort to raise
up to
the maximum $20,000 in donations to the party from each donor.
Some of the
money will be used for ads in local papers that will list
the names
of donors who gave in support of the tax plan” (Emphasis added).
* *
*
“‘In scripted remarks that follow
DeLay’s taped message, workers
at the National Republican
Congressional Committee engage
businessmen in conversation requesting
‘a one time contribution
of $300 to $500 because ‘we are
launching a media campaign. . .to
get some tax relief.’”
Exhibit 1.
According to the NRCC website[1] (Exhibit
2), Representative DeLay is the Chairman of the Republican Majority
Business Council (RMBC). The Associated
Press report discusses Representative DeLay’s involvement in the creation
of a “new Business Advisory Council” as early as December 2000.
B. Judicial Watch’s
April 4, 2001 Letter to Rep. DeLay.
On
“It has been reported in the Associated
Press that you are, on behalf of
the National Republican Congressional
Committee, selling meetings
with Bush Administration officials for
$20,000 donations. If this report
is correct (copy attached), your
activity is illegal under the following
U.S. Code statutory provisions, and we
respectfully request that you
immediately cease and desist.
18 U.S.C. § 201 (Bribery of Public
Officials and Witnesses);
and/or
18 U.S.C. § 600 (Promise of Employment
or Other Benefit for
Political Activity)
“Please confirm within 24 hours if the
Associated Press report is true.
If it is true and you do not
acknowledge having ceased and desisted,
Judicial Watch will pursue swift legal
action against you and the National
Republican Congressional Committee.”
Exhibit 3.
C. Rep. DeLay’s
Response Through Counsel.
Representative DeLay responded to Judicial Watch’s
request through his legal counsel. On
“Your personal and confidential letter
to the Honorable Tom DeLay
dated
been referred to this firm.
Congressman DeLay
makes every effort to comply with the law and he has done so in this instance.
Any concerns you may have about the
National Republican
Congressional Committee’s fundraising
efforts should be directed
to that organization.”
Exhibit 4.
Mr. Bethune, by failing to address the substance of
our request to Representative DeLay, confirmed the Associated Press
story, constituting an admission that illegal political fundraising practices
are, indeed, taking place.
D. Judicial
Watch’s Response to Rep. DeLay’s Counsel.
Judicial Watch responded to Rep. DeLay’s counsel in a
letter dated
“We are in receipt of your letter dated
Congressman Tom DeLay.
Your failure to address the substance
of our request to Mr. DeLay
is a confirmation of an Associated
Press story by Pete Yost of
entitled, “DeLay Makes Promise to GOP
Donors,” and constitutes an
admission.”
Exhibit 5.
E. The NRCC
Letter of
On
Specifically, the NRCC’s letter disingenuously states:
“Here, no contributor to this Committee is receiving any sort of official,
government reward, position or privilege for their contribution, nor is there
any official action taking place.”
However, the NRCC does not deny Representative DeLay’s quote from the Associated
Press story: “As an honorary member you
will be invited to meetings with top Bush administration officials
where your opinions on issues like tax reform will be heard.” (Emphasis
added) Perhaps the NRCC’s contributors
will not receive a government position, but they are being promised meetings
with Bush Administration government officials to discuss policy in exchange for
cash. Obviously realizing their
legal liability, the NRCC admitted they were “reviewing” the taped message of
Representative DeLay offering meetings with Bush Administration officials for
campaign contributions. And further, the
NRCC’s letter admits, “Administration officials have received invitations to
join us, and share their views on that debate, and to hear from grassroots
activists.”
F. Members of Congress Comment.
Fortunately, there are many Republican members of Congress
who are offended by Representative DeLay’s and the NRCC’s illegal activities in
selling meetings with Bush Administration officials for political campaign
contributions. This is not the first time that Representative DeLay has been
criticized for his fundraising practices. (Exhibit 7)[2] For example, during interviews on The
Judicial Watch Report, a television show sponsored by complainant and aired
nationally, two influential Republican Members of the House of Representatives
had this to say about this apparent practice of selling meetings with Bush
Administration officials:
“In
the final waning days of the
public
office was auctioned and that led directly to the destruction of
the
force
for good that mankind has ever designed.
But our offices cannot
be
lead out for auction.”
– Representative Mark Kirk (R-10th) of
* * *
“It’s
clearly not appropriate. That’s the kind
of hypocrisy that
undermines
the people’s belief in the system. I
would hope that
the
story is in error.”
–
Representative Adam Putnam (R-12th) of
the
Associated Press report concerning Rep. DeLay during
the
on the Renaissance Network.
* * *
Senator George Allen (R) of
Larry Klayman: “.
. .you don’t condone [DeLay and the NRCC] selling meetings with Bush
Administration officials?”
Senator
George Allen: “. . .no!, no!, no!. . .”
These candid statements – from Republican colleagues of
Representative DeLay – aptly characterize the deeply corrosive effect of the
illegal, calculated fundraising campaign of the NRCC, which involves the
quid pro quo of financial contributions in exchange for meetings with Bush
Administration officials. These
Republican Members of Congress have a sense of “right” and “wrong.” They also possess moral courage to frankly
and honestly critique their party’s “House Whip,” to whom the sobriquet, “The
Hammer,” has reportedly been assigned.
The FEC, by this sworn complaint, must now investigate these serious
allegations. It is simply unacceptable
for elected government officials to illegally sell meetings, influence and
power to whomever has the available cash.
This was not countenanced during the last eight years of the universally
corrupt Democrat Clinton Administration, and it cannot be countenanced during a
new Republican Bush Administration. If
this is what the Republican Party means when it repeats its mantra of “move on”
concerning the on-going and unpunished
crimes of the
III.
THE LAW.
A. Representative DeLay’s
and The NRCC’s Actions Fall Within The Anti-Bribery Law.
Representative DeLay’s solicitations of political campaign
cash for meetings with Bush Administration officials, as well as Representative
DeLay’s trading on his status as the House Majority “Whip” to financial
contributors, are graphic examples of gross violations of both the letter and
spirit of 18 U.S.C. § 201 (Bribery of Public Officials and Witnesses), and 18
U.S.C. § 600 (Promise of employment or other benefit for political
activity). Despite the Associated
Press’ reporting and Judicial Watch’s warning, Representative DeLay and the
NRCC unabashedly continue to barter for official government favors and
influence for citizens’ cash.
Specifically, 18 U.S.C. § 201 (Bribery of Public Officials
and Witnesses) provides in pertinent part:
“(a) For the purpose
of this section - (1) the term ''public official''
means
Member of Congress . . .2) being a public official or person
selected
to be a public official, directly or indirectly, corruptly
demands,
seeks, receives, accepts, or agrees to receive or accept
anything
of value personally or for any other person or entity,
in
return for: . . .being induced to do or omit to do any act in
violation
of the official duty of such official or person.
In U.S. v.
Biaggi, et al., 853 F.2d 89 (2nd Cir. 1988), the U.S. Court of
Appeals for the Second Circuit addressed the issue of a congressman’s “official
acts” with regard to 18 U. S. C. § 201. The
term “official act,” as used in 18 U. S. C. § 201(a)(3), prohibiting any
congressman from accepting anything of value for or because of official acts,
was not limited solely to acts related to the legislative process, but was
broad enough to include all acts normally thought to constitute legitimate use
of a congressman’s office. In Biaggi,
the Court ruled that the congressman engaged in “official acts,” within the
meaning of the anti-gratuity provisions of federal bribery statutes, when he
wrote letters on behalf of persons who had paid for his vacations using
congressional stationery, to urge federal and
The Second Circuit clearly
addressed the issue of “official acts,” ruling:
“Defendants
contend that the acts performed by Biaggi on behalf
of
Coastal were not “official act[s]” within the meaning of § 201
because
they were not legislative acts and because they were directed
principally toward municipal, not federal
agencies. In addition,
defendants
contend there was insufficient evidence to show that the
vacations
were offered or accepted “for or because of” Biaggi’s acts.
We
reject both contentions.
1. Official Acts
[5]
Biaggi’s suggestion that a congressman’s only “official act[s]
within
the meaning of § 201 are acts in the legislative process itself
is
untenable. The language of the section
does not mention legislative
acts,
and courts have read the section and its predecessors sufficiently
broadly
to encompass all of the acts normally thought to constitute a
congressman’s legitimate use of his office.”
Biaggi,
853
F.2d, at 97. See generally, U.S. v. Myers 635 F 2d. 932 (2d Cir.
1980). The Court found that the jury
could have rationally inferred Biaggi’s guilt from “the nature and sequence of
events, certain explicit statements, and suggestions of cover-up.” Biaggi, 853
F 2d, at 99. Like in Biaggi, the
nature and sequence of events and certain explicit statements here demonstrate
illegal activity under 18 U.S.C. §. 201.
Similar to Congressman Biaggi, Representative DeLay and the NRCC have
promised to arrange meetings for businessman with top government officials in
exchange for cash. Whether for political
campaigns or vacations is of no significance because both reasons are
indefensible and illegal.
Representative
DeLay, in his official capacity as a Member of Congress, as well as his
leadership role as House Majority Whip, with the cooperation and assistance of
the NRCC, is trading upon his official office, position, status and government
access, in order to sell meetings with Bush Administration officials in
exchange for political contributions under the “Business Advisory Council”
fundraising program. This is a flagrant
abuse of the public’s trust and Representative DeLay’s official government
office as fundraising tool. The quid
pro quo is clear, and the exchange rests upon the leverage of
Representative DeLay’s official office.
In order for the
crime of bribery to have been committed, it is not necessary that a public
official actually have the power to perform the act that he promises in return
for money. What is necessary is that the
public official solicit or receive money on representation that the money is
for the purpose of influencing the performance of some official act. See
Again,
Representative DeLay has placed his official government office and House leadership
position – his
Further, 18 U.S.C.
§ 600 (Promise of employment or other
benefit for political activity) provides in pertinent part:
“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 in
connection
with any general or special election to any political office,
or
in connection with any primary election or political convention or
caucus
held to select candidates for any political office, shall be fined
under
this title or imprisoned not more than one year, or both.”
In De Vera v.
Blaz, 851 F.2d 294 (1988), the U.S. Court of Appeals for the Ninth Circuit
addressed the breach of an alleged agreement of employment between a political
campaign worker and a candidate for the office of delegate for Guam to the
United States Congress, in exchange for the campaign worker’s vote, support and
work for the candidate. The Ninth
Circuit found, “The alleged promise clearly violates express provisions of both
federal and territorial election laws.”
See DeVera 851 F.2d at 296.
Clearly, Representative DeLay’s and the NRCC’s solicitations
and actions fall within the letter and spirit of these provisions of the U.S.
Code, among others.
B. “Offset Contributions” and FEC Reporting.
Given Representative DeLay’s and the NRCC’s cursory denial of
wrongdoing without refuting the substance of the Associated Press story
showing that they are selling meetings with Bush Administration officials for
up to $20,000 in political campaign contributions, an evidentiary inference
arises that neither is adhering to the FEC’s reporting requirements.
The FEC is charged by law with obtaining reports from
political committees about the source of their funding and their expenditures,
then making this information available to the public (see, e.g. Buckley v.
Valeo, 424 U.S. 1, 109 (1976)).
Specifically, the Federal Election Campaign Act (FECA), 2 U.S.C. § Sec.
431-455,
et seq., requires
disclosure of the following:
(b) Contents of reports. Each report under this section shall disclose
. . .
(4) for
the reporting period and the calendar year, the total amount of all
disbursements, and all disbursements in the following categories . . . (F) contribution
refunds and other offsets to contributions . . .
(5) the
name and address of each . . . (E) person who receives a contribution refund or
other offset to contributions from the reporting
committee where such contribution was reported under paragraph 3(A) of this
subsection, together with the date and amount of such disbursement;
(6)(A) for an authorized committee, the name and address of each person
who has received any disbursement not disclosed under paragraph (5) in an
aggregate amount or value in excess of $20 within the calendar year, together
with the date and amount of any such disbursement;
2 U.S.C. § 434(b). (Emphasis
added).
The FEC’s own regulations are even more specific, requiring
that the following information be reported:
(b) Reporting of
Disbursements. Except for reports file
in accordance with 11 CFR 104.17, each report filed under 11 CFR 104.1 shall
disclose the total amount of all disbursements for the reporting period and for
the calendar year and shall disclose the information set forth at 11 CFR
104.3(b)(1) through (4) . . .
(1) Categories
of disbursements for political committees other than authorized committees. All political committees other than
authorized committees shall report the total amount of disbursements made
during the reporting period, and, except for itemized and unitemized
breakdowns, during the calendar year in each of the following categories: (iv) Offsets; (A) Itemized offsets
to contribution (including contribution refunds); (B) Unitemized offsets
to contributions (including contribution refunds); (C) Total offsets to
contributions.
(2) Categories
of disbursements for authorized committees.
An authorized committee of a candidate for Federal office shall report
the total amount of disbursements made during the reporting period and, except
for itemized and unitemized breakdowns, during the calendar year in each of the
following categories: (v) Offsets; (A) Itemized offsets to
contributions (including contribution refunds); (B) Unitemized offsets
to contributions (including contribution refunds); (C) Total offsets to contributions;
(3) Itemization
of disbursements by political communities other than authorized committees. Each political committee, other than an
authorized committee, shall report the full name and address of each person in
each of the following categories, as well as the information required by each
category . . . (iv) Each person who receives a contribution refund or other
offset to contributions from the reporting committee where such contribution
refund was reported under 11 CFR 104.3(b)(1)(iv), together with the date and
amount of such refund or offset; (ix) Each person who has received any
disbursement within the reporting period not otherwise disclosed in accordance
with 11 CFR 104.3(b)(3) to whom the aggregate amount or value of disbursements
made by the reporting committee exceed $200 within the calendar year, together
with the date, amount and purpose of any such disbursement.
(4) Itemization
of disbursement by authorized committees.
Each authorized committee shall report the full name and address of each
person in each of the following categories, as well as the information required
by each category . . . (v) Each person who receives a contribution refund or
other offset to contributions form the reporting committee where such
contribution was reported under 11 CFR 104.3(b)(2)(v) together with the date
and amount of such refund or offset; (vi) Each person who has received
any disbursement(s) not otherwise disclosed under 11 CFR 104.3(b)(4) to whom
the aggregate amount or value of such disbursements exceeds $200 within the
calendar year, together with the date, amount and purpose of any such
disbursement.
(c) Summary of
contribution and operating expenses.
Each report filed pursuant to 11 CFR 104.1 shall disclose for both the
reporting period and the calendar year:
(1) (i) The total contributions to the reporting
committee; (ii) The total offsets to contributions; (iii) The net contributions
(subtract total offsets from total contributions).
11 C.F.R. § 104.3. (Emphasis added).
In the DeLay/NRCC fundraising scheme, a meeting with Bush
Administration officials, sold to a
contributor, is a contribution “offset.”
It is the “refund” or benefit derived from the cash political
contribution itself. Under the
provisions of 2 U.S.C. § 434 (b), the name and address of each person receiving
a meeting with a Bush Administration official (whose salary and position is
sanctioned for at the tax payer expense) in exchange for a political
contribution must, therefore, be reported, together with the date of the
meeting. The strict FEC regulations
governing categories of disbursements and itemization thereof require a
detailed itemization for all offsets (or contribution refunds) as
“disbursements” by calendar year. Under
11 C.F.R. 104.3(b)(3), the reporting of any person, not otherwise disclosed in
other disbursement categories, to whom the aggregate amount or value of the
offset exceeds $200, within a calendar year, is required – together with the
date amount and purpose.
The DeLay/NRCC fundraising campaign scheme is predicated on
selling meetings with Bush Administration officials for up to $20,000 – one
hundred times the minimum reporting requirement. The meetings, and their costs, are offsets of
the contribution and must be reported, in detail, as described above. By regulation, the FEC would then accept the
report of these contribution offsets from the NRCC as an official “Report of
Disbursement.”
1.) The FEC’s Obligation.
The FEC is charged by law with being the “principal
repository” of reports and other campaign-related statements that political
committees are required to file, and “serve[s] as a national clearing house for
information in respect to the administration of elections.” See generally, Buckley, 424
It is the law that “affected” voters and citizens have
standing to sue the FEC for failure to obtain information that the FEC is
required to gather:
“ . . . we do not think it can be denied that this sort of information
that Congress required disclosed aids voters, if and when they vote. If a party is denied information that will
help it in making a transaction -- and a vote can be thought of as a kind of
transaction -- that party is obviously injured in fact. . . . A voter deprived
of useful information at the time he or she votes suffers a particularized
injury in some respects unique to him or herself just as a government
contractor wrongfully deprived of information to be made available at the time
bids are due, would suffer a particularized injury even if all other bidders
suffered an injury.”
See Federal Election Commission v.
Akins, 101 F. 3d
731, 737 (DC Cir., 1996).
Surely, information about unlawful campaign fundraising
activities, such as the sale of meetings with Bush Administration officials in
exchange for contributions to the NRCC, is important and useful to voters
electing candidates for federal office.
2.) Reporting Is Not “Rocket Science.”
Judicial Watch, and other public interest organizations,
collect and disseminate information concerning unlawful government activities
to the public. Save the reporting of Mr.
Yost of the Associated Press, Judicial Watch’s ability to disseminate
and use FEC-reported information has been substantially harmed. Judicial Watch, unfortunately, has
substantial experience concerning the requirements of FEC reporting relating to
the illegal sale of Commerce Department trade mission seats during the Clinton
Administration. Judicial
Watch has shown before that it has “informational standing.” See Judicial
Watch v.
In this instance, Representative DeLay and the NRCC are
replicating the abuse of the DNC and the Clinton/Gore Presidential campaigns
with regard to the sale of seats on trade missions and other government
benefits and perks. While using another
“clever” vehicle, Representative DeLay and the NRCC are selling meetings with
senior Bush Administration officials.
The modus operandi and the illegality are identical.
It does not take a “rocket scientist” to conclude that the quid
pro quo of a political campaign contribution in exchange for a seat on a
taxpayer-financed trade mission, or a meeting with Bush Administration
officials, is an “offset” to a contribution under the FECA and should be
reported as such.
IV.
CONCLUSION.
Representative Tom DeLay is a powerful and influential Member
of Congress. The NRCC is a powerful and
influential arm of the Republican Party. The nation entrusts a large measure of
responsibility to them. The old adage
reminds us, “To whom much is given, much is required.” In this matter, the Majority Whip,
Representative DeLay, and the NRCC are violating public’s trust by selling our
government officials in the Bush Administration to the highest bidder.
When this was done in the universally corrupt Clinton
Administration, Judicial Watch took legal action. It cannot look the other way for the
Republican Congress and Bush Administration.
The Bush Administration and the Republican Party have both repeatedly
said they want to “move on,” and not prosecute the on-going crimes of the
Judicial Watch, in the public interest, respectfully requests
that the FEC and the Justice Department promptly investigate Representative
DeLay and the NRCC concerning the matters presented herein. When Representative DeLay and the NRCC were
told to cease and desist, they refused to do so. The FEC and the Justice Department must now
take swift remedial action.
Thank you for your prompt attention in this important matter.
Sincerely,
JUDICIAL WATCH, INC.
Larry Klayman Thomas
J. Fitton
Chairman and General Counsel President
Subscribed
and sworn to before me this _____ day of April, 2001 by Larry Klayman and
Thomas J. Fitton.
________________________________________
Christopher J. Farrell
Notary Public,
My Commission expires
Exhibits
Exhibit
2 - Page 1
Exhibit
3 - Page 1
Exhibit
4 - Page 1
Exhibit
5 - Page 1
Exhibit
8 - Page 1, 2, 3, 4, 5, 6, 7, 8, 9, 10
