07
Oct

By: Rachel Roubein, National Journal, 10/6/15

A watchdog organization filed a complaint Monday with the Office of Congressional Ethics, alleging that 11 House members concluded with the payday-loan industry.

Campaign for Accountability, a new nonprofit aimed at holding government officials accountable, is asking OCE to investigate contributions members received from the industry shortly before or after they took official actions—such as sponsoring legislation, signing onto a letter supporting payday loans, and more. This request comes after another watchdog group, Allied Progress, issued a 19-page report detailing its allegations that the timing surroundings contributions “raises a serious question of whether they were made as a quid pro quo for official action.”

OCE—the House’s nonpartisan, independent investigative arm—is required to take a look at every complaint that gets filed, but this doesn’t mean it always launches an investigation. That decision lies with the office’s board. And some ethics lawyers say that cases tied to timing and political contributions can be difficult to prove. “Making a case like this is a very big hill to climb,” said Kenneth Gross, an ethics attorney who leads Skadden’s Political Law practice. “It can get the camel’s nose under the tent, but it doesn’t go anywhere unless you can connect the dots and show there was some explicit agreement.”

The ethics complaint, like the Allied Progress report, delves into the official actions members took around the time they received campaign contributions from payday-lending executives and industry political action committees. The report cites several actions, such as writing to the Justice Department about its intentions to stop some payday-loan practices; sponsoring or cosponsoring legislation that, Campaign for Accountability says, would hinder the Consumer Financial Protection Bureau’s work of regulating the industry; and more.

“The payday lending industry preys on some of the most vulnerable members of our society, deliberately plunging them into a cycle of debt in order to reap high profits,” the complainant states. “The idea that members of Congress are trading the power of their offices to help unscrupulousness payday lenders avoid badly needed oversight and regulation in return for campaign contributions undermines public confidence in the institution as a whole.”

Eleven lawmakers are listed in the nonprofit’s complaint: Republican Reps. Stephen Fincher of Tennessee; Scott Garrett of New Jersey; Jeb Hensarling, Randy Neugebauer, and Pete Sessions of Texas; Blaine Luetkemeyer of Missouri; Patrick McHenry of North Carolina; Steve Stivers of Ohio; and Kevin Yoder of Kansas; and Democratic Reps. Alcee Hastings of Florida and Gregory Meeks of New York. Only a few of the members’ offices responded to requests for comment.

“This so-called complaint was concocted by one liberal front group and marketed by another,” Hensarling’s chief of staff, Andrew Duke, wrote in an email. “Congressman Hensarling has always believed that one unelected, unaccountable bureaucrat should not hold so much power that they can virtually deny any financial product or service to consumers—and he is on record dating back to 2009 opposing this flawed structure. The assertion being made by these groups is ridiculous and not worthy of further comment.”

And Caroline Boothe, a spokeswoman for Sessions, said: “Since the CFPB’s inception, Congressman Sessions has fought vigorously against its unwarranted and unprecedented assault on the free enterprise system. The concerns raised by this liberal watchdog group are grossly inaccurate and a complete mischaracterization of Congressman Sessions’ continued efforts in fighting against the flawed practices of the liberal, unelected bureaucratic ‘tsars’ at the CFPB.”

Meeks, meanwhile, said in a statement that the complaint “completely ignores the fact that the policy position involved is one I had long and consistently held.” He added that the complaint “lacks any factual or legal merit whatsoever.”

It’s unclear if OCE will formally investigate the matter; OCE declined to comment.

In order for OCE to investigate Campaign for Accountability’s complaint, two board members (one appointed by the House speaker, another by the minority leader) would need to authorize a preliminary review. A vote in favor generally means that publicly available information provides a reasonable basis to believe there may have been a violation.

Stanley Brand, former House counsel and current senior counsel at Akin Gump, said that while he doesn’t know all the facts in this specific case, it’s a member’s job to write legislation and work with advocacy groups. “The whole notion that the coincidence of campaign contributions makes everything they do illegal is absurd, and it’s been rejected by courts and by the committee,” Brand said.

He pointed to a case he was involved in regarding lawmakers who held fundraisers around the time the House voted on the Dodd-Frank financial-reform legislation, which first established the CFPB. OCE referred the investigation of three members to the House Ethics Committee, stating that there was substantial reason to believe they had solicited or accepted contributions linked to official actions or seemingly provided special treatment. The ethics panel dismissed the matter and considered it closed.

“You have to show an explicit direct connection between the official act—whatever that is—and the receipt of the campaign contribution, which is very difficult to do and almost never proven,” Brand said.

But Anne Weismann, Campaign for Accountability’s executive director, said she believes the timing of the members’ actions suggests misconduct. She cited the indictment of Democratic Sen. Robert Menendez of New Jersey—on charges that he used the power of his office to help a longtime friend and political supporter—and said it shows how timing can play a pivotal role in a case.

“Nothing seems stretched here,” she said. “We’re not reading into things. What we are relying on is the timing, and I think the timing is clear. That was something that was a key element in the Menendez complaint, and I think that that really signals that the timing is a significant factor in deciding whether or not there has been a violation of ethics laws or criminal laws.”