March 6, 2002

BY CERTIFIED MAIL & FAX

Office of the General Counsel Chief

Federal Election Commission Public Integrity Section

999 E Street, NW Criminal Division

Washington, DC 20463 U.S. Department of Justice

10^th St. & Constitution Ave., NW

Washington, DC 20530

Office of the Inspector General Federal Bureau of Investigation

U.S. Department of Commerce Washington Metropolitan Field Office

HCHB Room, Room 7898C 601 4^th Street, NW

Washington, DC 20230 Washington, DC 20535-0002

Office of the Inspector General Office of the Inspector General

U.S. Department of Health & Human Services U.S. Department of Energy

Room 5541, Cohen Building 1000 Independence Ave., SW

330 Independence Avenue, SW Washington, DC 20585

Washington, DC 20201

Complaint Requesting an Investigation of The 2002 National Republican Congressional Committee “Economic Recovery Workshop.”

Respondents: Congressman Tom Davis (R-VA), Congressman Tom DeLay (R-TX), Congressman Bill Thomas (R-CA), Congressman Porter Goss (R-FL), Assistant Secretary Maria Cino of the Department of Commerce, Assistant Secretary Dan Brouillette of the Department of Energy, Chief of Staff Robert Wood of the Department of Health & Human Services, Administrator Tom Scully of the Center for Medicare & Medicaid Services, Mr. Nick Calio, Assistant to the President for Legislative Affairs, and the National Republican Congressional Committee.

Dear Ladies and Gentlemen:

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 files this formal complaint requesting a full and thorough investigation of Congressman Tom Davis (R-VA), Congressman Tom DeLay (R-TX), Congressman Bill Thomas (R-CA), Congressman Porter Goss (R-FL), Assistant Secretary Maria Cino of the Department of Commerce, Assistant Secretary Dan Brouillette of the Department of Energy, Chief of Staff Robert Wood of the Department of Health & Human Services, Administrator Tom Scully of the Center for Medicare & Medicaid Services, and Mr. Nick Calio, Assistant to the President for Legislative Affairs, and the National Republican Congressional Committee concerning their participation in the 2002 National Republican Congressional Committee “Economic Recovery Workshop.”

Specifically, the individuals above and the NRCC appear to be in violation 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. Congressman Tom Davis’ NRCC Letter February 13, 2002

In a two page letter, dated February 13, 2002, Congressman Tom Davis, the Chairman of the National Republican Congressional Committee (“NRCC”), offers meetings and briefings from senior Bush Administration officials in exchange for political contributions – under the title, “NRCC Economic Recovery Workshop.”

The Davis letter contains a tentative schedule of events that includes a “National Defense Briefing” by Congressman Porter Goss in exchange for $1000.00. Contributors can also receive investment advice during a meeting with Assistant Commerce Secretary Maria Cino; small business energy forecast advice during a meeting with Assistant Energy Secretary Dan Brouilette; “How to” advice from Assistant to the President Nick Calio concerning minimizing government agency compliance costs.

Meetings provided in exchange for political contributions include topics such as:

“How to Cut Your Taxes and Stimulate Your Business” (Parts I & II)

“The Economic Forecast”

“Energy Issues”

“Government Regulations”

“Health Care Issues/Physicians Advisory Board”

“2002 Elections”

Contributors are also promised that in exchange for their money, their recommendations concerning economic stimulus will be “presented to Congressional leaders and the White House.”

Congressman Davis does not act alone in this matter. Additional influential, powerful leaders within the Republican Party are actively participating in the fundraising scheme with Congressman Davis, including Congressmen Tom DeLay, Bill Thomas, and Porter Goss (hereinafter “The Congressmen”). According to NRCC documents, each of these congressmen plays a leading role in raising cash in exchange for government information and/or meetings with Bush Administration officials.

The NRCC letter from Congressman Davis and the Schedule of Events are attached as Exhibit 1.

B. Press Reports

In a Washington Post article of Saturday March 2, 2002, entitled, “Political Donors Get Private Briefing,” Sharon Theimer of the Associated Press reports:

“For $1,000, a Republican donor can get a private briefing

on homeland security from the House intelligence committee

chairman and a spot in the ‘Speaker's Circle.’

Being in the circle, however, does not guarantee a meeting with

House Speaker Dennis Hastert, R-Ill. Instead, circle members

will get to meet with House Majority Whip Tom DeLay, R-Texas,

during a gathering March 13-14.” (Emphasis added.)

* * *

The potential passage of new fund-raising restrictions makes it

even more important for party committees to find new ways to

get –– and keep –– donors involved, said Steve Schmidt, spokesman

for the National Republican Congressional Committee.

One technique is offering access and awards. The NRCC, for

example, will honor 500 ‘Republicans of the Year’ at its mid-March

event.

Donors who pay $1,000 to join the Speaker's Circle or buy a $250

ticket can attend the gathering, which includes a special briefing

on domestic security by Rep. Porter Goss, a Florida Republican

and chairman of the House Select Committee on Intelligence.

They also get to talk policy with Nick Calio, President Bush's

liaison to Congress; House Ways and Means Chairman Bill Thomas,

R-Fla.; and Assistant Commerce Secretary Maria Cino.

‘At the end of the day our goal is twofold: It is to elect as many

Republican candidates to the House of Representatives and two,

to promote Republican ideas through political campaigns,’ Schmidt

said. ‘These events dual our ability do that.’”

* * *

“Those who give $100,000 annually to belong to the NRCC's

‘Business Leadership Trust’ get a Super Bowl package for two

and invitations to golf tournaments, resort retreats and luncheons

with congressional leaders.

The group is ‘geared toward those in the business community

who enjoy smaller, more personal events with congressional

leadership that are conducive to frank conversation,’ its

description says.

On Monday, March 4, 2002, Damon Chappie reported in a Roll Call article entitled, “NRCC Event Revives Fight With Klayman,” that:

“The National Republican Congressional Committee is offering

donors a closed-door briefing on national defense from the

chairman of the House Select Committee on Intelligence next

week in exchange for a $1,000 contribution, according to a Feb. 13

fundraising letter from House GOP leaders.

The hourlong session, which will require photo identification to

enter, is just one of several events offered by the NRCC as part of

a two-day "economic recovery workshop" that will include face time

with several high-ranking Bush administration officials.

Those officials include White House lobbyist Nicholas Calio,

assistant Commerce Secretary Maria Cino, Assistant Energy

Secretary Dan Brouillette, and Health and Human Services

Chief of Staff Robert Wood, among others.”

* * *

“Several hundred donors are expected to attend the two-day

session next week at the Ronald Reagan Building in downtown

D.C. The letter, signed by NRCC Chairman Tom Davis (Va.),

invites donors to contribute $1,000 to join "the Speaker's Circle"

and attend the March 13 and 14 meeting. That contribution will

give them access to sessions with Intelligence panel head

Porter Goss (R-Fla.) as well as a breakfast reception with Majority

Whip Tom DeLay (Texas). Then, Ways and Means Chairman

Bill Thomas (R-Calif.) and high-powered tax lobbyist Ken Kies

will tell ‘how to cut your taxes and stimulate your business,’

according to the NRCC solicitation.

For a smaller contribution of $250, a donor may attend a

‘Republican of the Year’ luncheon as well as two of six

workshops hosted by Calio and the other Bush administration

officials.

The NRCC defended the fundraising event, saying it was

perfectly appropriate and legal.

Steve Schmidt, NRCC communications director, said it was

nothing more than ‘a hard-dollar fundraising event for the NRCC.

It is proper to raise money in an election year. It is appropriate for

all manner of Republican officials to meet with Republican

activists and donors. It is appropriate for political appointees to be

involved in the political process.’”

See Exhibit 2

The Republicans’ sale of a “National Defense Briefing” from the Chairman of the House Intelligence Committee – Congressman Porter Goss – is particularly egregious. Given the fact that the United States is in a state of war, the peddling of national security information for campaign cash is a violation of national security laws. The solicitation connected to the “National Defense Briefing” by Congressman Goss (that advise, “For security reasons, you must be able to show proper identification during registration and check-in.”) raise very grave questions concerning national security.^[1] If Congressman Goss’ briefing is merely an unclassified re-cap of recent news reports, then his briefing is a crass exploitation of a national tragedy for campaign cash. Should this alternative explanation be true, then Goss and his fellow NRCC members will have demonstrated their willingness to trade on the lives of the members of our Armed Forces and the genuine terrorism and security concerns of the public in exchange for money.

Judicial Watch notes with great interest that Assistant Secretary of Energy Dan Brouillette is the moderator of “Workshop 3: Energy Issues.” (See Exhibit 1, Schedule of Events) Assistant Secretary Brouillette’s participation in this forum appears to be directly at odds with Vice President Cheney’s position relative to the release of information concerning energy policy as evidenced by the Vice President’s arguments in recent Freedom of Information Act (“FOIA”) and Federal Advisory Committee Act (“FACA”) litigation brought by Judicial Watch in the U.S. District Court for the District of Columbia.

III. THE LAW.

A. The Congressmen’s and The NRCC’s Actions Fall Within The Anti-Bribery Law.

The Congressmen’s solicitations of political campaign cash for meetings with Bush Administration officials, as well as their trading on their status with 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). The NRCC unabashedly continues 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 (2^nd 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 New York City officials to take actions favorable to the party that paid for the vacations.

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, the Congressmen and the NRCC have promised to arrange meetings for contributors 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.

The Congressmen, in their official capacity as Members of Congress, as well as in their leadership roles, with the cooperation and assistance of the NRCC, are trading upon their official office, position, status and government access, in order to sell meetings with Bush Administration officials in exchange for political contributions under the “Economic recovery Workshop” fundraising program. This is a flagrant abuse of the public’s trust and the Congressmen’s official government office as fundraising tool. The quid pro quo is clear, and the exchange rests upon the leverage of the Congressmen’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 U.S. v. Arroyo, et al.581 F2d. 649 (7^th Cir. 1978).

Again, the Congressmen have placed their official government offices and House leadership positions – their Washington, D.C. influence – as the fulcrum of the illegal fundraising scheme. The Congressmen’s solicitations for cash included a promise of meetings with Bush Administration officials concerning official U.S. government policy matters. The contributions solicited by the Congressmen and the NRCC are specifically for the official acts of the Congressmen and officials of the Bush Administration in their posts as government officeholders.

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, orany 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, the Congressmen’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 the Congressmen’s and the NRCC’s failure to refute the substance of the press articles showing that they are selling meetings with Bush Administration officials for 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 Congressmen/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 Congressmen/NRCC fundraising campaign scheme is predicated on selling meetings with Bush Administration officials. 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 U.S. 1, 109 (1976); 2 U.S.C. §§ 434(b), 437d and 438. Judicial Watch, in its public interest role, maintains that the American voter deserves a clear, unambiguous response to its questions that it posed to Representative DeLay. The FEC must investigate the matters presented in this complaint so that the public can have confidence in the accuracy of information reported by politicians and political parties to the FEC and the voting public at large.

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. FEC, C.A. No. 98-0386 (Memorandum Opinion, July 6, 1998).. Judicial Watch demonstrated that the Democratic National Committee (DNC) and the 1996 Clinton/Gore reelection campaign were required under FECA to report “offsets to contributions,” “contribution refunds” and other “disbursements” to the FEC, which the FEC in turn was obligated to make public. Id. The sale of seats to donors on Department of Commerce trade missions, by the DNC and the 1996 Clinton/Gore reelection campaigns, in exchange for campaign contributions, were “offsets to contributions,” “contribution refunds” or “other disbursements” that had to be reported under Federal Election Campaign Act (FECA), 2 U.S.C. § 434(b), et seq.

In this instance, the Congressmen 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, the Congressmen 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. ROLE OF THE INSPECTORS GENERAL

This formal complaint requesting investigation is addressed to the Inspector Generals of the Department of Commerce, the Department of Energy and the Department of Health & Human Services so that they may take appropriate action in connection with the involvement of their own department’s officers in concerning this illegal political fundraising scheme. The Inspectors General have an affirmative oversight and investigative responsibility to police their own departments in order to detect and prevent fraud, waste, and abuse of government office, and power.

Investigations and/or actions by the Federal Election Commission and/or the Public Integrity Section of the Department of Justice do not preclude the Inspectors General of the various departments from pursuing their own lawful investigations of violations of public law, ethics regulations and department policy concerning political activity by government employees.

This formal complaint provides the Inspectors General with official notice that the actions of officers named in this complaint, and within their departments, may be in violation of law, regulation or official departmental policy. Specifically, we refer to Maria Cino of the Commerce Department, Dan Brouillette of the Department of Energy, as well as Robert Wood and Tom Scully of the Department of Health & Human Services.