Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
702601
label
Counsel (1989)
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
702601
sourceUrl
contentType
document
title
Counsel (1989)
citationUrl
identifierLocal
29177-008
collections
Records of the White House Office of the Chief of Staff to the President (George H. W. Bush Administration)
John Sununu White House Office Files
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
702601
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
6756b8de493dc4f8
ocrText
Originally Processed With FOIA(s):
FOIA Number:
1998-0004-F[1]
S
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin:
Chief of Staff, White House Office of
Series:
Sununu, John, Files
Subseries:
White House Offices Files
OA/ID Number:
29177
Folder ID Number:
29177-008
Folder Title:
Counsel (1989)
Stack:
Row:
Section:
Shelf:
Position:
G
15
25
5
1
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
01. Memo
From C. Boyden Gray to John Sununu
12/05/89
PS
Re: Executive Order on Logging Congressional Contacts (2
pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff to the President, Office of the
Open on Expiration of PRA
Series:
Sununu, John, Files
(Document Follows)
Subseries:
White House Offices File
By &P (NLGB) on 5/12/05
WHORM Cat.:
File Location:
Counsel (1989)
Date Closed:
11/30/2004
OA/ID Number:
29177-008
FOIA/SYS Case #:
1998-0004-F
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy |(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
THE WHITE HOUSE
WASHINGTON
December 5, 1989
MEMORANDUM FOR GOVERNOR SUNUNU
THE has CHIEF seen (discussed 07 STAFF 27 1990 of JAN 1990 with Boyden)
FROM:
C. BOYDEN GRAY xamn
SUBJECT:
Executive Order on Logging Congressional Contacts
You requested that I provide additional suggestions about the
uses to which we would put the information gathered under the
draft Executive Order that I sent you on Oct. 30 (copy attached).
O
Most of the information would be made available to the
public, and thus to the press and to private sector groups like
Common Cause. Since one of our principal aims is to discourage
congressional influence that suffers from the appearance or
reality of impropriety, the threat of publicity should by itself
have a powerful deterrent effect. In this sense the E.O.
resembles the financial disclosure reports that high- and mid-
level executive employees must file each year. Just recently,
Secretary Kemp strongly endorsed such an approach to inhibiting
improper congressional influence (transcript attached).
O
Apart from the substantive description of the contact, the
information in the logs would be very concise: the name and
position of the contacting and contacted parties and the date.
By using standard forms for this information, it could easily be
put into a computerized data base, and software could be
developed by OMB to flag unusual patterns or numbers of contacts
by particular Members and their staffs. When suspicious patterns
are found, the Inspector General (or an analogous official) at
the relevant agencies would be asked to investigate. Here again,
the mere threat of such investigations should help discourage
incidents like those now made infamous by the Keating Five.
O
The data generated by OMB's computer programs could also be
used to identify major congressional efforts to undermine the
President's program through pressure on agency officials. While
such efforts are not improper in the sense of being corrupt, it
would be perfectly appropriate for OMB and the White House to
learn about them in order to be able to take legitimate steps to
counteract such influence on the President's subordinates. It
would also be appropriate for the White House to be fully aware
of the extent to which the President's subordinates are providing
special assistance to particular Members of Congress.
O
Under the new ethics legislation, high-level congressional
staff are forbidden to contact Executive agencies about matters
in which they have significant financial interests. The
computerized data base could help to police this prohibition.
Finally, the E.O. would be a helpful bargaining chip in
negotiations for the President's campaign finance reforms. Once
those reforms are enacted, a presumption will arise that Members
are not motivated or tempted to intervene with federal agencies
in order to assist campaign contributors. It would therefore be
reasonable to rescind the E.O. upon enactment of the President's
reforms. By offering Congress a choice between living with the
E.O. and living with campaign finance reform, we may marginally
increase the prospects for passage of the latter package. And,
assuming that Congress decides that campaign finance reform is
still unacceptable, we will have another argument to use in
defending the anti-corruption goals of the E.O.
I must also emphasize that this Executive Order is well supported
by historical and legal precedents. Indeed, both the courts and
Congress itself have endorsed the principles underlying the E.O.
and it can be argued that the President has an affirmative
constitutional duty to take effective steps to discourage
improper contacts.
The Government in the Sunshine Act prohibits certain ex
parte contacts by congressional members and staff; when such
contacts nonetheless occur, the agency must make a public
record of the occurrence.
o
Some Executive agencies (e.g., FDA and FCC) have
adopted regulations having effects similar to, or more
stringent than, those that the E.O. would have throughout
the government.
o
No one doubts that congressional "oversight" and
"constituent service" can degenerate into improper pressure.
Both the judicial and legislative branches expect the
Executive to resist such pressure, and this E.O. will assist
the President's subordinates in such resistance without
preventing legitimate congressional contacts.
Attachments
DRAFT Option Two
Executive Order
of November , 1989
Reporting of Contacts Between Congress and the Executive Branch
United By the authority vested in me by the Constitution and
be States of America, and in order to take care laws of laws the
oversight branch for its actions, to provide for of
the more executive faithfully executed, to increase the accountability that the
of the administrative process, to better Presidential
of constitutional ethical separation of powers, to maintain high preserve standards the
discourage result attempts to exert undue or improper influences and to
conduct in executive branch decisionmaking,
programs may in unfairness, fraud, waste or mismanagement in that the
ordered as administered follows: by the executive branch, it is hereby
Sec. 1. Definitions. For the purposes of this Order:
is an "agency" under 44 U.S.C. 3502 (1).
(a) "Agency" means any authority of the United States that
(b) "Reportable contact" means
attempt at communication,
(1) any written, oral, or other communication or
Member (2) between an officer or employee of an agency and a
branch, of Congress or employee of the legislative
or (3) similar on the subject of (a) any contract, award,
particularized disposition of the funds grant,
property or under the agency's control; (b) any rulemaking or
civil, or administrative investigation of particular
adjudication by the agency; or (c) any criminal,
individuals or entities by the agency.
Management and Budget.
(c) "Director" means the Director of the Office of
Sec. implement 2. General Requirements. (a) Each agency shall
of procedures to establish and maintain permanent develop and
minimum, any reportable the contact. The procedures shall prescribe, records at
the employee contacted; individual contact; involved the initiating and recording title the in subject the or the of position contact; contact; the matter name of the the and of the time, the name title agency date of or officer the position and individual duration or of the of a
shall be created and maintained of each reportable contact. contact. A record
(b) The Director shall develop and implement procedures for
making records of covered contacts available to the President, to
Heads of Departments and of other agencies, and to their
designees.
(c) Each agency shall comply with its responsibilities in an
efficient, effective, and economical manner. The procedures
required by this Order shall be implemented within [sixty] days.
(d) Subject to the approval of the Director, the head of any
agency is authorized to exempt from the coverage of this Order
any officer or employee, or category of officer or employee, of
the agency. Such exemptions may be limited to specified
categories of reportable contacts.
(e) Subject to the approval of the Director, the head of any
agency is authorized, with respect to his own agency, to amend
the definition of "reportable contact" in section 1 (b) above to
include additional subject matters.
Sec. 3. (a) Each agency shall designate a place where the public
may have access to the agency's records of reportable contacts.
(b) Subject to the approval of the Director, the head of any
agency is authorized, with respect to his own agency, to exclude
any category of reportable contacts from the records accessible
to the public under section 3 (b).
Sec. 4. Judicial Review. This Order is intended only to improve
the internal management of the Federal government, and is not
intended to create any right or benefit, substantive or
procedural, enforceable at law by a person against the United
States, its agencies, its officers or any person.
George Bush
THE WHITE HOUSE
November , 1989.
- 2 -
MEET THE PRESS - November 26, 1989
9
scandal that your predecessor left you in HUD. But at the centerpiece-
-one of the politicians at the centerpiece of this influence
peddling at HUD was Sen. Alfonse D'Amato of New York.
Now, Senator D'Amato says, New York politics is tough.
All I did was represent my constituents. Did Senator D'Amato just
do what all you New York politicians do?
SECRETARY KEMP: Well, there's an investigation going to
take place, not only over the past practices of the Senate with
regard to HUD, but also with the savings and loan crisis. And I'm
just not going to comment on the personalities that are involved
in that type of an investigation, be they Republican or Democrat.
It is justifiable for members of Congress to write
letters and to make phone calls on behalf of projects for their
community, just so long as they know under Jack Kemp and President
George Bush that they're going to be held accountable for their
calls and for their letters, and that there'll be a David Broder
or an Al Hunt who will, under the Freedom of Information Act, get
every piece of mail that's ever been written to HUD and every
other agency of the federal government. So they better be able to
prove that on merit, and on competition, on objective reality,
they are not seeking for their district anything that they wouldn't
for some other district in the country.
MR. HUNT: But, sir, you're not conducting a criminal
investigation--
SECRETARY KEMP: I'm not, no.
MR. HUNT: --of any of these people. Your department is
not. And you know some of the facts better than anyone. You know
New York politics. You know Sen. D'Amato. You know HUD. And
there were projects involving Buffalo, New York, your home town;
Puerto Rico, which at last check was 1,000 miles from his constituents
in New York. Do you think all that stuff was legit?
SECRETARY KEMP: Well, I am not engaged in the investigation.
The Inspector General, the Justice Department, and now the Senate
has named a special investigator, not only for HUD but also for
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
02. Memo
From C. Boyden Gray to John Sununu
10/30/89
P-5
Re: Executive Order on Logging Congressional Contacts (1
pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff to the President, Office of the
Open on Expiration of PRA
Series:
Sununu, John, Files
(Document Follows)
Subseries:
White House Offices File
By In (NLGB) on 5/12/05
WHORM Cat.:
File Location:
Counsel (1989)
Date Closed:
11/30/2004
OA/ID Number:
29177-008
FOIA/SYS Case #:
1998-0004-F
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
THE WHITE HOUSE
WASHINGTON
October 30, 1989
MEMORANDUM FOR GOVERNOR SUNUNU
FROM:
C. BOYDEN GRAY YCMG
SUBJECT:
Executive Order on Logging Congressional Contacts
Attached is a draft Executive Order requiring that records be
kept of certain contacts between officials in the legislative
branch and executive branch employees. The executive order was
developed jointly by my office and the Office of Legal Counsel at
the Department of Justice.
The Order would direct agencies to maintain records of contacts
from Members and their staff that deal with three main categories
of government business: (a) contracts, grants, and similar
dispositions of public funds; (b) agency rulemakings and
adjudications; and (c) criminal, civil, or administrative
investigations of particular individuals or entities. These are
the areas we believe are most vulnerable to abusive congressional
lobbying. Subject to OMB clearance, agencies could adjust the
coverage of employees and contacts. The records would generally
be available to the public and the press.
This Order would deter congressional micromanagement, especially
in cases where "constituency service" looks like improper
influence or even corruption. It also offers an opportunity to
move forward with our legal strategy. As I noted in my Oct. 13
memo to the President (copy attached), congressional attempts to
override the Order would likely set up a good case for
vindicating Executive authority in the courts.
There are also good reasons to give serious consideration to
initiating the clearance process now:
O
The Interior Appropriations bill contained an offensive
provision that would have banned a program like the one set up by
this Executive Order. We got that provision nullified before the
President signed the bill, and we should exploit that victory.
(As the attached Wall Street Journal editorial indicates, our
success with the Interior bill is seen as a part of the
Administration's line-item veto strategy.)
O
As the HUD stories and the S&L scandal unfold further, we
will need to point out concrete steps we have taken to prevent
recurrences, and we will want to emphasize that political
influence in the regulatory and grant-making processes is not by
any means an exclusively executive branch problem. This
Executive Order would be a major contribution to that effort.
DRAFT Option Two
Executive Order
of November
,
1989
Reporting of Contacts Between Congress and the Executive Branch
By the authority vested in me by the Constitution and laws of the
United States of America, and in order to take care that the laws
be more faithfully executed, to increase the accountability of
the executive branch for its actions, to provide for Presidential
oversight of the administrative process, to better preserve the
constitutional separation of powers, to maintain high standards
of ethical conduct in executive branch decisionmaking, and to
discourage attempts to exert undue or improper influences that
may result in unfairness, fraud, waste or mismanagement in the
programs administered by the executive branch, it is hereby
ordered as follows:
Sec. 1. Definitions. For the purposes of this Order:
(a) "Agency" means any authority of the United States that
is an "agency" under 44 U.S.C. 3502 (1).
(b) "Reportable contact" means
(1) any written, oral, or other communication or
attempt at communication,
(2) between an officer or employee of an agency and a
Member of Congress or employee of the legislative
branch,
(3) on the subject of (a) any contract, award, grant,
or similar particularized disposition of the funds or
property under the agency's control; (b) any rulemaking
or adjudication by the agency; or (c) any criminal,
civil, or administrative investigation of particular
individuals or entities by the agency.
(c) "Director" means the Director of the Office of
Management and Budget.
Sec. 2. General Requirements. (a) Each agency shall develop and
implement procedures to establish and maintain permanent records
of any reportable contact. The procedures shall prescribe, at a
minimum, the recording of the name and title or position of the
individual initiating the contact; the name of the individual
contacted; the title or position of the agency officer or
employee involved in the contact; the time, date and duration of
the contact; and the subject matter of the contact. A record
shall be created and maintained of each reportable contact.
(b) The Director shall develop and implement procedures for
making records of covered contacts available to the President, to
Heads of Departments and of other agencies, and to their
designees.
(c) Each agency shall comply with its responsibilities in an
efficient, effective, and economical manner. The procedures
required by this Order shall be implemented within [sixty] days.
(d) Subject to the approval of the Director, the head of any
agency is authorized to exempt from the coverage of this Order
any officer or employee, or category of officer or employee, of
the agency. Such exemptions may be limited to specified
categories of reportable contacts.
(e) Subject to the approval of the Director, the head of any
agency is authorized, with respect to his own agency, to amend
the definition of "reportable contact" in section 1 (b) above to
include additional subject matters.
Sec. 3. (a) Each agency shall designate a place where the public
may have access to the agency's records of reportable contacts.
(b) Subject to the approval of the Director, the head of any
agency is authorized, with respect to his own agency, to exclude
any category of reportable contacts from the records accessible
to the public under section 3 (b).
Sec. 4. Judicial Review. This Order is intended only to improve
the internal management of the Federal government, and is not
intended to create any right or benefit, substantive or
procedural, enforceable at law by a person against the United
States, its agencies, its officers or any person.
George Bush
THE WHITE HOUSE
November , 1989.
- 2 -
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
03. Memo
From C. Boyden Gray to POTUS
10/13/89
P-5
Re: Executive Agency Reports of Congressional Contacts (2
pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff to the President, Office of the
Series:
Sununu, John, Files
Open on Expiration of PRA
Subseries:
White House Offices File
(Document Follows)
WHORM Cat.:
By & (NLGB) on 12/12/07
File Location:
Counsel (1989)
Date Closed:
11/30/2004
OA/ID Number:
29177-008
FOIA/SYS Case #:
1998-0004-F
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
THE WHITE HOUSE
WASHINGTON
October 13, 1989
MEMORANDUM FOR THE PRESIDENT
FROM:
C. BOYDEN GRAY
SUBJECT:
Executive Agency Reports of Congressional Contacts
I. Action Forcing Event
On Sept. 10, you asked me to see whether the Interior appro-
priations bill (H.R. 2788) might provide an occasion for a line-
item attack on congressional micromanagement. Sec. 117 provided
that no funds covered by the bill may be used "to prepare reports
on contacts between employees of the Department of the Interior
and Members and Committees of Congress and their staff."
II. Analysis
I think this provision would have presented an excellent
opportunity to challenge unconstitutional micromanagement of the
executive branch. Thanks to fine White House and OMB staff work,
however, sec. 117 was nullified by the Conference Committee. I
should add that even though these efforts deprived us of a test
case in this instance, it is crucial that we continue to go on
record with early and vigorous opposition to such provisions;
without such a record, courts will be much less receptive to our
legal claims.
Nonetheless, this incident may still serve a purpose. An
Executive Order, which would require the logging and reporting of
certain congressional contacts throughout the government, could
be extremely helpful both in promoting good government and in
combatting congressional micromanagement. I have explored this
possibility with the Justice Department, and we believe that such
an Executive Order may offer the best available vehicle for
vindicating Presidential authority. In addition, recent press
attention to sec. 117 and to the role of Congress in H.U.D.
decisionmaking (two examples are attached) suggests that we can
hope for public support on this issue.
While several details are still being discussed, our thought is
to require executive branch officials to log contacts from
Members and their staff that deal with three main categories of
government business: (a) contracts, grants, and similar
dispositions of public funds; (b) agency rulemakings and
adjudications; and (c) criminal, civil, or administrative
investigations of particular individuals or entities.
Such an Executive Order would help deter congressional
micromanagement of the executive branch, especially when aimed at
efforts by your subordinates to carry out their legal duties or
your policies. It would also help prevent "constituency service"
from developing into improper influence or genuine corruption.
Finally, if Congress sought to override the Order through
legislation, a defense of your constitutional authority in the
courts would appear to have a good chance of success.
I believe we can justify such an Executive Order both for
separation-of-powers reasons and as a "sunshine in government"
device. Needless to say, Congress is unlikely to welcome such a
program. Nevertheless, we intend to proceed through the ordinary
clearance process unless you object.
t
,
INSIGHT
18
198
10/26/89
REVIEW & OUTLOOK
A Political Test Case
ARTICLE I, SECTION 7, CLAUSE 2: Every Bill which shall have passed
the House of Representatives and the Senate, shall, before it becomes a Law,
be presented to the President of the United States; If he approve he shall sign
it, but if not he shall return it, with his Objections to that House in which it shall
have originated, who shall enter the Objections at large on their Journal, and
proceed to reconsider it. If after such Reconsideration two thirds of that House
shall agree to pass the Bill, it shall be sent, together with the Objections, to the
other House, by which it shall likewise be reconsidered, and if approved by two
thirds of that House, it shall become a Law
ARTICLE I, SECTION 7, CLAUSE 3: Every Order, Resolution, or Vote to
which the Concurrence of the Senate and House of Representatives may be
necessary (except on a question of Adjournment ) shall be presented to the
President of the United States: and before the Same shall take Effect, shall be
approved by him, or being disapproved by him, shall be repassed by two thirds
of the Senate and House of Representatives, according to the Rules and Limita-
tions prescribed in the Case of a Bill.
President Bush told reporters a
to use this provision as the test for a
few months ago that he was looking
line-item veto, Congress caved. The
for the right test case to see whether
fear Congress has of any line-item-
he already has the line-item veto. Vice
veto test led Members to add the sin-
President Quayle and Budget Director
gle most contorted and ridiculous pro-
Darman said recently they've joined
vision this year, "This section shall be
the search. On Tuesday, the subject
effective only on Oct. 1, 1989." This
came up again when Marlin Fitzwater
means Interior contacts cannot be
explained the constitutional argument
logged only on one day-a Sunday-
based on the provisions above to the
that had already passed..
White House press corps.
If the White House is looking for
President Bush doesn't have any
another unconstitutional bill, Rep.
provision in mind, but line-item-veto
John Dingell is trying again to raise
bait will be like earthworms at mid-
the Fairness Doctrine from the dead.
night in the coming Continuing Reso-
President Reagan vetoed this as a
lution. The harder question is whether
First Amendment violation. The
anyone yet understands that Mr.
"Fairness" Doctrine's enthusiasts are
Bush's fight for his constitutional pre-
incumbents in the House who know
rogatives is about politics as much as
the rules squelch lively discussions on
it is about law.
broadcasts, deterring feisty chal-
We have been persuaded by the
lengers. There are also other provis-
constitutional argument for the inher-
ions requiring Congressmen to join
ent line-item veto since 1987, when
treaty-negotiating teams and new re-
lawyer Stephen Glazier first made the
strictions on OMB.
case on this page. The 1974 budget
Unconstitutional bills make good
"reform," passed over President
legal targets, but the line-item veto is
Nixon's veto, took away the presiden-
better understood as a political oppor-
tial impoundment power, thereby in-
tunity than as mere fodder for law-
troducing monstrous CRs and evi-
yers. Commenting on the budget mess
scerating the presidential veto.
this week, President Bush said: "The
Mr. Glazier discovered that the
perception out there is that it's the
Founders had worried that Congress
fault of Congress. And you can look to
might take the President out of the
the leadership and ask them why that
loop. Article I, Section 7, Clause 3
is the perception of the American peo-
says that whether it's called an "or-
ple.' Exactly right. Now's the time to
der, resolution or vote" or anything
make the political case that Presi-
else, Presidents must have the chance
dents need the line-item weapon to re-
to veto. Labeling an omnibus budget a
store discipline to the budget.
"bill" can't deprive the President of
Congress is in no position to naysay
his power to veto items.
Mr. Bush now that we're into Gramm-
Finding a test case shouldn't be
Rudman's sequestration. Just this
hard, but there is something to be
week, the House-Senate conference
said for picking the best one possible.
met-231 conferees, divided into 26
The White House had the perfect case,
different subconferences. Senator
but Congress blinked before it could
Daniel Inouye agreed to close some
go to court. After the HUD and S&L
bases in Hawaii in exchange for such
stories broke, some Congressmen be-
goodies as $11 million for a parking
gan to worry that their influence ped-
lot at Walter Reed Hospital. Confer-
dling at executive-branch and inde-
ence negotiator Rep. Bill Hefner
pendent agencies might some day get
pulled down $40 million in military
them in trouble. They worried about
bases for North Carolina and gra-
an Interior Department directive to
ciously allowed Senator James Sasser
log all communications with Members
$70 million for bases in Tennessee.
or their staffs. Congress inserted the
President Bush should take the
following into the Interior appropria-
Constitution in one hand and a budget
tion: "None of the funds available un-
ax in the other and get to work. He
der this title may be used to prepare
should chop out both unconstitutional
reports on contacts between em-
provisions and budget pork. Congress
ployees of the Dept. of the Interior
may have lost any sense of discipline,
and Members and committees of Con-
but that doesn't mean the country
gress and their staff."
must learn to live forever with this
The White House warned that this
mess. President Bush has the power
would be an unconstitutional usurpa-
to change how Washington works, if
tion of its power. When it threatened
only he will use it.
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
04. Memo
From C. Boyden Gray to POTUS
10/13/89
PS
Re: Executive Agency Reports of Congressional Contacts (2
pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff to the President, Office of the
Series:
Sununu, John, Files
Open on Expiration of PRA
Subseries:
White House Offices File
WHORM Cat.:
By
(Document & Follows)
(NLGB) on 12/12/07
File Location:
Counsel (1989)
Date Closed:
11/30/2004
OA/ID Number:
29177-008
FOIA/SYS Case #:
1998-0004-F
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
THE WHITE HOUSE
WASHINGTON
1989 OCT 13 PM 4: 21
October 13, 1989
MEMORANDUM FOR THE PRESIDENT
FROM:
C. BOYDEN GRAY chr
SUBJECT:
Executive Agency Reports of Congressional Contacts
I. Action Forcing Event
On Sept. 10, you asked me to see whether the Interior appro-
priations bill (H.R. 2788) might provide an occasion for a line-
item attack on congressional micromanagement. Sec. 117 provided
that no funds covered by the bill may be used "to prepare reports
on contacts between employees of the Department of the Interior
and Members and Committees of Congress and their staff."
II. Analysis
I think this provision would have presented an excellent
opportunity to challenge unconstitutional micromanagement of the
executive branch. Thanks to fine White House and OMB staff work,
however, sec. 117 was nullified by the Conference Committee. I
should add that even though these efforts deprived us of a test
case in this instance, it is crucial that we continue to go on
record with early and vigorous opposition to such provisions;
without such a record, courts will be much less receptive to our
legal claims.
Nonetheless, this incident may still serve a purpose. An
Executive Order, which would require the logging and reporting of
certain congressional contacts throughout the government, could
be extremely helpful both in promoting good government and in
combatting congressional micromanagement. I have explored this
possibility with the Justice Department, and we believe that such
an Executive Order may offer the best available vehicle for
vindicating Presidential authority. In addition, recent press
attention to sec. 117 and to the role of Congress in H.U.D.
decisionmaking (two examples are attached) suggests that we can
hope for public support on this issue.
While several details are still being discussed, our thought is
to require executive branch officials to log contacts from
Members and their staff that deal with three main categories of
government business: (a) contracts, grants, and similar
dispositions of public funds; (b) agency rulemakings and
adjudications; and (c) criminal, civil, or administrative
investigations of particular individuals or entities.
Such an Executive Order would help deter congressional
micromanagement of the executive branch, especially when aimed at
efforts by your subordinates to carry out their legal duties or
your policies. It would also help prevent "constituency service"
from developing into improper influence or genuine corruption.
Finally, if Congress sought to override the Order through
legislation, a defense of your constitutional authority in the
courts would appear to have a good chance of success.
I believe we can justify such an Executive Order both for
separation-of-powers reasons and as a "sunshine in government"
device. Needless to say, Congress is unlikely to welcome such a
program. Nevertheless, we intend to proceed through the ordinary
clearance process unless you object.
NATION
The Politics of Influence Peddling
GERO SYGMA
Monticciolo (left) implied that congressional peddling is similar to private lobbying efforts, which irked Lantos (right).
SUMMARY: Congressmen often
political issues being dealt with - it goes
said. struggling to find an answer.
exert pressure on government
back [to the days of] Johnson and Nixon
"So you would like to back up and start
agencies to get favorable
and Ford and Carter. I mean. it's no differ-
all over again?" Lantos said.
treatment for pet projects, but
ent - the process - in terms of political
"In terms of our role in terms of dealing
they resent suggestions that such
[pressures]. I'm certain that many mem-
with the issue. certainly there were -
congressional lobbying is akin to
bers even of this committee have inquired
said Monticciolo. floundering.
private lobbying. Most lawmakers
of HUD. have asked HUD to consider is-
"You are not answering my question.
view lobbying as part of their duty
sues. to reconsider issues. to legitimately
Mr. Monticciolo. and I will direct you to
and oppose plans to record these
support their constituents' efforts in dealing
answer the question."
activities with federal agencies.
with projects and issues."
"Would you please
rephrase the
Lantos was not pleased. "Are you sug-
question?"
om Lantos did not like the way Jo-
gesting that if Congresswoman [Marge]
"I will. and please listen when I ask
T
seph Monticciolo answered his
Roukema approaches a HUD office on be-
questions."
question.
half of a project in her district. that is
Monticciolo obviously had not listened
Monticciolo. the former New York re-
analogous to James Watt getting $300.000
to the question. because he had given the
gional administrator for the Department of
for a phone call?" he asked.
wrong answer - he had suggested that
Housing and Urban Development. sat at
"Oh. absolutely not. Absolutely not."
some congressmen use the power to over-
the witness table July 28 to testify about
Monticciolo said. backing away quickly
see agencies such as HUD for reasons other
influence peddling at HUD. Lantos. a Cali-
from a position few are willing to maintain
than to ensure that the department runs
fornia Democrat and chairman of the Gov-
before a congressional committee.
fairly and efficiently. He had said that
emment Operations Subcommittee on Em-
"Well then." Lantos pressed. "would
members of Congress requested officials at
ployment and Housing. wanted him to
you like to rephrase your last few sentences.
HUD to give special consideration to spe-
express outrage at the preferential treat-
because they didn't - didn't strike a very
cific projects: worse. he had implied that
ment given those companies that hired Rea-
reasonable chord?"
there is a similarity between the kind of
gan administration alumni to lobby for
Monticciolo fumbled for an answer:
political pressure exerted by congressmen
HUD money. Monticciolo. however. made
"Well. I wasn't dealing with - I never dealt
and that exerted by former administration
the mistake of indicting Congress on the
with those individuals. I never dealt with
officials lobbying for their clients projects.
same charge.
them. I had no relationship with them."
Congressional committees frown on sug-
"You are appalled [by lobbying by con-
"But you're under oath. Mr. Montic-
gestions of such equivalence.
gressmen at HUD]," Lantos asserted.
ciolo." Lantos reminded him. "We are con-
There are, after all. differences between
"Yes. sir." Monticciolo answered.
ducting this hearing in a very cordial fash-
the motives of lobbyists and congressmen
"Are you also surprised?"
ion. But you have to be precise in the
promoting their pet programs. For exam-
"Yes. I think we all have built percep-
statements you make."
ple. ex-Interior Secretary Watt was paid
tions of things. and we know there are
I apologize if I tried - Monticciolo
hefty consulting fees to push for HUD
INSIGHT SEPTEMBER 18. 198
22
"Because lobbying is accepted, the lines are often
crossed and it becomes more than delivering a
benefit to a needy constituent."
funding of his clients' projects. Congress-
turn around and deliver benefits to a con-
bying is described by a former official of
men were not - though of course devel-
gressman at election time."
the Commerce Department's Economic
opers are often generous contributors to the
Liedl says pressure by congressmen was
Development Administration, which was
campaigns of those legislators who do the
responsible for as many unworthy projects
set up to funnel federal aid to depressed
most for their businesses. The difference is
at HUD as was pressure by outside lobby-
areas. The EDA has become notorious as
lobbyists are trying to make money; con-
ists. But he says it is hard to prove this
a source of pork for congressmen whose
gressmen are just trying to get reelected.
contention because departments do not
districts are prosperous but who insist the
The differences in motive, though, do
keep track of their contacts with members
rules be overridden for particular projects
not necessarily translate into differences in
and their staffs as they do with lobbyists:
(Insight, May 15). The former official says
policy: Projects in each case are given out
"What is missing from the HUD hearings
there is no pretense when it comes to mem-
on the basis of political contacts rather than
is a public record of the extent to which
bers getting their way. In discussing a proj-
merit. For example, Lloyd L. Hayes, a
congressmen lobbied HUD to get favors for
ect that had repeatedly been ruled ineligible
former mayor of Port Arthur, Texas. and a
their powerful campaign contributors."
for EDA funds by the EDA staff, including
major Democratic campaign contributor.
Kenneth R. Mayer, an assistant profes-
the department's inspector general, he says
told The New York Times in August, "I am
sor of political science at the University of
a Senate staffer "told me that it was patently
sure he [Democratic Rep. Jack M. Brooks
obvious that the program was ineligible,
Jr. was helpful" in getting HUD money for
but that the senator didn't care that it was
Park Central. a $150 million housing and
ineligible, just that EDA was the closest
office project Hayes runs in Port Arthur.
program that it would fit into."
Yet congressmen are quick to stress that
Liedl argues that there would be less
congressional lobbying is not equivalent to
lobbying by Congress if departments kept
private lobbying. The political manip-
GEHO SYGMA
thorough records of their contacts. as they
ulation by the lobbyist is appalling. they
do with private lobbyists. "If there were a
argue. but political pressure on the same
requirement that whenever a member of
issue by a congressman is a proper part of
Congress or his staff called an agency offi-
his duties. Rep. Christopher Shays. a Con-
cial, a record was made of that, it would be
necticut Republican and a member of the
a way to distinguish legitimate oversight
subcommittee. was careful to make this
from political arm-twisting. Without a rec-
distinction when he asked Monticciolo later
ord we can't know."
in the hearing about any contacts he had
Such reporting requirements are vigor-
had with Sen. Alfonse M. D'Amato. a
ously resisted by Congress. Becky Norton
New York Republican.
Dunlop, while assistant secretary for na-
"Is it your testimony that he never asked
tional parks at the Interior Department,
to promote any project?" Shays asked. add-
asked staff members to report any inquiries
ing: "And see. there is nothing wrong with
made by congressmen or their staffs. She
a senator asking to promote a certain proj-
says, "We were not trying to inhibit the
ect. so I don't have any problem with that."
Park Service people from talking to mem-
I don't either." Monticciolo responded.
bers of Congress, or members of Congress
"because certainly I've had elected officials
from expressing their concerns to the Park
call me to promote projects all the time."
"Right. So there's nothing wrong with
RICHARD KOZAK INSIGHT
Service: [we] just needed to know what
members of Congress were concerned
that." Shavs said.
about so that we could be responsive."
"No. sir."
The plan was opposed by much of the
Opinion is not so unanimous outside the
agency's staff and by a number of congress-
hearing rooms. Mark B. Liedl. for one.
men. who called her to complain. Dunlop
director of the Heritage Foundation's Con-
Dunlop: Staff guards ties with Congress.
explains that agency staff members often
gress Assessment Project. says that lobby-
work closely with Congress and guard their
ing is only appropriate if the sole measure
Wisconsin who studies congressional over-
ties. "If [staff members] build up personal
of a congressman's worth is the amount of
sight. says, "One of the problems is that it's
relationships with the members of the com-
pork he can deliver to a favored con-
almost impossible to prove that a con-
mittees. they will get
funds they feel
stituent." Yet he admits that a congress-
gressman's support was bought, because
they need that the management of the de-
man's ability to bring projects to his district
you're talking about PAC contributions and
partment doesn't have as a priority."
is considered a main gauge of his success.
honoraria. for which there are all sorts of
Congress ultimately responded to the
"It's not seen as immoral or corrupt. It is
disingenuous explanations, like, 'We' re
reporting plan by making it illegal. The
simply how the system works. It is a system
just keeping the lines of communication
fiscal 1990 appropriation bill for the Inte-
that views a congressman as someone who
open: we're making sure we have access to
rior Department includes the provision:
delivers benefits to constituents." However.
make our case.' There's a lot of behind-the-
"None of the funds available under this
Liedl says, "because lobbying is accepted,
door lobbying where congressmen go over
[bill] may be used to prepare reports on
the lines are often crossed and it becomes
and say, 'Keep this thing in the budget: it's
contacts between employees of the Depart-
more than delivering a benefit to a needy
really worthwhile.' so that everyone knows
ment of the Interior and Members and
constituent. It becomes delivering benefits
they in favor of it."
Committees of Congress and their staff."
to a powerful constituent. who can then
An example of this congressional lob-
1 Eric Felten
INSIGHT / SEPTEMBER 18. 1989
23
THE WALL STREET JOURNAL TUESDAY, SEPTEMBER 19, 1989
REVIEW & OUTLOOK
Congress's Ethics Priorities
In the wake of the Jim Wright and
call "influence peddling" defined as
Tony Coelho ethics scandals, bills
former Republican administration of-
have been introduced to limit PACs,
ficials lobbying on behalf of paying
ban honorariums and restrict lobbying
clients.
by former Members and congres-
This theological distinction was
sional staffers. Status: All are stalled.
raised directly at one of the recent
But one ethics-related bill is doing
congressional hearings into the HUD
very well, this one to place curbs on
scandal. Former HUD Regional Ad-
the outside lobbyists who often com-
ministrator Joseph Monticciolo had
pete with Members of Congress to get
estimated that at least half of Section
action from the executive branch. Its
8 HUD contract decisions were politi-
status: Passed in both chambers, with
cally motivated and went on to say
approval last week in the House by a
that Members of Congress as well as
vote of 410 to 3. Any businessman can
former Reagan administration offi-
see what's going on here: Congress is
cials had improperly lobbied HUD.
sticking it to its competition.
Rep. Tom Lantos asked: "Would
The anti-lobbyist bill requires any-
you like to rephrase your last few sen-
one who is seeking a federal contract
tences, because they didn't strike a
or grant to disclose the identity of the
very reasonable chord?" Mr. Montic-
lobbyist who helped him get it. West
ciolo quickly backed down from his
Virginia's Senator Robert Byrd de-
heresy.
vised the bill after a private lobbyist
We have no real problem with Sen-
beat him to the pork barrel for one of
ator Byrd's attempt to force lobbyists
his constituents.
into full disclosure, but why not man-
Recall that Senator Byrd stepped
date the same treatment for Con-
down as Majority Leader last year to
gress? Executive-branch agencies al-
chair the Appropriations Committee,
ready keep thorough records of their
saying then that he'd now be in a bet-
contacts with lobbyists, but not with
ter position to funnel money to West
Members of Congress. A good way to
Virginia. Officials at West Virginia
tell which congressional calls to an ex-
University discovered last month how
ecutive agency are legitimate busi-
seriously Senator Byrd took his re-
ness and which are Jim Wright-style
newed commitment to the pork bar-
arm-twisting would be to have the
rel: he withdrew his support for a fed-
agencies publicly report all contacts
erally funded research center on their
with Members and their staff on spe-
campus. The university had sinned
cific contracts or cases.
against Beltway orthodoxy by hiring a
This idea was actually floated on
lobbying firm to secure funds for the
Capitol Hill, and Congress recoiled
project. Mr. Byrd resented this.
more or less the way Bela Lugosi did
"Why," he asked the school's offi-
at the sight of a cross. In fact, Con-
cials, "do you waste your money on a
gress has just made such reports ille-
lobbyist when I'm being paid to be
gal: The current Interior Department
your Senator?" He thereupon intro-
appropriations bill carries with it a
duced his anti-lobbying bill, and his
measure that flatly prohibits its em-
colleagues whooped it through both
ployees from logging any contacts
chambers.
with the legislative branch.
Meanwhile, the Beltway bellows on
What's Congress afraid of? Per-
for yet another month about "influ-
haps if reporters or even average citi-
ence peddling" at HUD. Ethics aside,
zens had access to a record of such
one of the most interesting revelations
congressional interventions it'd be-
from the HUD scandal is that so
come obvious what much of modern
many developers felt they had to by-
Washington is all about. Voters might
pass a largely Democratic Congress
see that a Congressman's job today
and hire professional lobbyists to win
has less to do with forming public pol-
contracts from a Republican adminis-
icy and more to do with helping spe-
tration. In fact, over the past decade
cial interests get their piece of the S1
the number of lobbyists has gone up
trillion federal pie Congress bakes ev-
by some 50%. Divided government is
ery year. In turn, grateful PACs un-
fostering competition-and Congress
derwrite their incumbencies.
doesn't like it.
It will be hard to take Washing-
Of course, the Members resent the
ton's handling of the ethics issue seri-
notion that there's anything analogous
ously until it subjects itself to the
between what they call "constituent
same commandments it keeps hand-
service" the pressure they exert on
ing down for everyone else to obey.
behalf of special interests or cam-
The Byrd lobbying amendment should
paign contributors-and what they
include Congress.
NATION
The Politics of Influence Peddling
GERO SYGMA
Monticciolo (left) implied that congressional peddling is similar to private lobbying efforts, which irked Lantos (right).
SUMMARY: Congressmen often
political issues being dealt with - it goes
said. struggling to find an answer.
exert pressure on government
back [to the days of] Johnson and Nixon
"So you would like to back up and start
agencies to get favorable
and Ford and Carter. I mean. it's no differ-
all over again?" Lantos said.
treatment for pet projects, but
ent - the process - in terms of political
"In terms of our role in terms of dealing
they resent suggestions that such
[pressures]. I'm certain that many mem-
with the issue. certainly there were -
congressional lobbying is akin to
bers even of this committee have inquired
said Monticciolo. floundering.
private lobbying. Most lawmakers
of HUD. have asked HUD to consider is-
"You are not answering my question.
view lobbying as part of their duty
sues. to reconsider issues. to legitimately
Mr. Monticciolo. and I will direct you to
and oppose plans to record these
support their constituents' efforts in dealing
answer the question."
activities with federal agencies.
with projects and issues."
"Would you please
rephrase the
Lantos was not pleased. "Are you sug-
question?"
om Lantos did not like the way Jo-
gesting that if Congresswoman [Marge]
"I will. and please listen when I ask
T
seph Monticciolo answered his
Roukema approaches a HUD office on be-
questions."
question.
half of a project in her district. that is
Monticciolo obviously had not listened
Monticciolo. the former New York re-
analogous to James Watt getting $300.000
to the question. because he had given the
gional administrator for the Department of
for a phone call?" he asked.
wrong answer - he had suggested that
Housing and Urban Development. sat at
"Oh. absolutely not. Absolutely not."
some congressmen use the power to over-
the witness table July 28 to testify about
Monticciolo said. backing away quickly
see agencies such as HUD for reasons other
influence peddling at HUD. Lantos. a Cali-
from a position few are willing to maintain
than to ensure that the department runs
fornia Democrat and chairman of the Gov-
before a congressional committee.
fairly and efficiently. He had said that
emment Operations Subcommittee on Em-
"Well then." Lantos pressed. "would
members of Congress requested officials at
ployment and Housing. wanted him to
you like to rephrase your last few sentences.
HUD to give special consideration to spe-
express outrage at the preferential treat-
because they didn't - didn't strike a very
cific projects: worse. he had implied that
ment given those companies that hired Rea-
reasonable chord?"
there is a similarity between the kind of
gan administration alumni to lobby for
Monticciolo fumbled for an answer:
political pressure exerted by congressmen
HUD money. Monticciolo. however. made
"Well. I wasn't dealing with - I never dealt
and that exerted by former administration
the mistake of indicting Congress on the
with those individuals. I never dealt with
officials lobbying for their clients projects.
same charge.
them. I had no relationship with them."
Congressional committees frown on sug-
"You are appalled [by lobbying by con-
"But you're under oath. Mr. Montic-
gestions of such equivalence.
gressmen at HUD]," Lantos asserted.
ciolo." Lantos reminded him. "We are con-
There are, after all. differences between
"Yes. sir." Monticciolo answered.
ducting this hearing in a very cordial fash-
the motives of lobbyists and congressmen
"Are you also surprised?"
ion. But you have to be precise in the
promoting their pet programs. For exam-
"Yes. I think we all have built percep-
statements you make."
ple. ex-Interior Secretary Watt was paid
tions of things. and we know there are
I apologize if I tried - Monticciolo
hefty consulting fees to push for HUD
INSIGHT SEPTEMBER 18. 198
22
Because lobbying is accepted, the lines are often
crossed and it becomes more than delivering a
benefit to a needy constituent."
funding of his clients' projects. Congress-
turn around and deliver benefits to a con-
bying is described by a former official of
men were not though of course devel-
gressman at election time."
opers are often generous contributors to the
the Commerce Department's Economic
Liedl says pressure by congressmen was
Development Administration. which was
campaigns of those legislators who do the
responsible for as many unworthy projects
most for their businesses. The difference is
set up to funnel federal aid to depressed
at HUD as was pressure by outside lobby-
areas. The EDA has become notorious as
lobbyists are trying to make money; con-
ists. But he says it is hard to prove this
gressmen are just trying to get reelected.
a source of pork for congressmen whose
contention because departments do not
The differences in motive, though, do
districts are prosperous but who insist the
keep track of their contacts with members
not necessarily translate into differences in
rules be overridden for particular projects
and their staffs as they do with lobbyists:
policy: Projects in each case are given out
(Insight. May 15). The former official says
"What is missing from the HUD hearings
on the basis of political contacts rather than
there is no pretense when it comes to mem-
is a public record of the extent to which
merit. For example, Lloyd L. Hayes, a
bers getting their way. In discussing a proj-
congressmen lobbied HUD to get favors for
former mayor of Port Arthur, Texas. and a
ect that had repeatedly been ruled ineligible
their powerful campaign contributors."
major Democratic campaign contributor.
for EDA funds by the EDA staff, including
Kenneth R. Mayer, an assistant profes-
told The New York Times in August. "I am
the department's inspector general. he says
sor of political science at the University of
sure he [Democratic Rep. Jack M. Brooks
a Senate staffer "told me that it was patently
Jr. was helpful" in getting HUD money for
obvious that the program was ineligible,
but that the senator didn't care that it was
Park Central. a $150 million housing and
office project Hayes runs in Port Arthur.
ineligible. just that EDA was the closest
program that it would fit into."
Yet congressmen are quick to stress that
Liedl argues that there would be less
congressional lobbying is not equivalent to
private lobbying. The political manip-
lobbying by Congress if departments kept
GEHO SYGMA
ulation by the lobbyist is appalling. they
thorough records of their contacts. as they
do with private lobbyists. "If there were a
argue. but political pressure on the same
requirement that whenever a member of
issue by a congressman is a proper part of
his duties. Rep. Christopher Shays. a Con-
Congress or his staff called an agency offi-
necticut Republican and a member of the
cial, a record was made of that, it would be
subcommittee. was careful to make this
a way to distinguish legitimate oversight
distinction when he asked Monticciolo later
from political arm-twisting. Without a rec-
ord we can't know."
in the hearing about any contacts he had
had with Sen. Alfonse M. D'Amato. a
Such reporting requirements are vigor-
New York Republican.
ously resisted by Congress. Becky Norton
"Is it your testimony that he never asked
Dunlop. while assistant secretary for na-
to promote any project?" Shays asked. add-
tional parks at the Interior Department.
ing: "And see. there is nothing wrong with
asked staff members to report any inquiries
made by congressmen or their staffs. She
a senator asking to promote a certain proj-
ect. so I don't have any problem with that."
says, "We were not trying to inhibit the
"I don't either." Monticciolo responded.
Park Service people from talking to mem-
"because certainly I've had elected officials
bers of Congress. or members of Congress
call me to promote projects all the time."
from expressing their concerns to the Park
"Right. So there's nothing wrong with
"No. sir."
Opinion is not so unanimous outside the
RICHARD KOZAK INSIGHT
Service: [we] just needed to know what
that." Shavs said.
members of Congress were concerned
about so that we could be responsive."
The plan was opposed by much of the
hearing rooms. Mark B. Liedl. for one.
agency's staff and by a number of congress-
director of the Heritage Foundation's Con-
men. who called her to complain. Dunlop
Dunlop: Staff guards ties with Congress.
gress Assessment Project. says that lobby-
explains that agency staff members often
ing is only appropriate if the sole measure
work closely with Congress and guard their
Wisconsin who studies congressional over-
of a congressman's worth is the amount of
ties. "If [staff members] build up personal
sight. says, "One of the problems is that it's
pork he can deliver to a favored con-
relationships with the members of the com-
almost impossible to prove that a con-
stituent." Yet he admits that a congress-
mittees. they will get
funds they feel
gressman's support was bought. because
man's ability to bring projects to his district
they need that the management of the de-
you talking about PAC contributions and
is considered a main gauge of his success.
partment doesn't have as a priority."
honoraria. for which there are all sorts of
"It's not seen as immoral or corrupt. It is
Congress ultimately responded to the
disingenuous explanations, like. 'We're
simply how the system works. It is a system
reporting plan by making it illegal. The
just keeping the lines of communication
that views a congressman as someone who
fiscal 1990 appropriation bill for the Inte-
open: we're making sure we have access to
delivers benefits to constituents." However.
rior Department includes the provision:
make our case.' There's a lot of behind-the-
"None of the funds available under this
Liedl says. "because lobbying is accepted,
door lobbying where congressmen go over
the lines are often crossed and it becomes
[bill] may be used to prepare reports on
and say, 'Keep this thing in the budget: it's
more than delivering a benefit to a needy
contacts between employees of the Depart-
really worthwhile.' so that everyone knows
ment of the Interior and Members and
constituent. It becomes delivering benefits
they're in favor of it."
to a powerful constituent, who can then
Committees of Congress and their staff."
An example of this congressional lob-
- Eric Felten
INSIGHT / SEPTEMBER 18. 1989
23
THE WALL STREET JOURNAL TUESDAY, SEPTEMBER 19, 1989
REVIEW & OUTLOOK
Congress's Ethics Priorities
In the wake of the Jim Wright and
call "influence peddling' defined as
Tony Coelho ethics scandals, bills
former Republican administration of-
have been introduced to limit PACs,
ficials lobbying on behalf of paying
ban honorariums and restrict lobbying
clients.
by former Members and congres-
This theological distinction was
sional staffers. Status: All are stalled.
raised directly at one of the recent
But one ethics-related bill is doing
congressional hearings into the HUD
very well, this one to place curbs on
scandal. Former HUD Regional Ad-
the outside lobbyists who often com-
ministrator Joseph Monticciolo had
pete with Members of Congress to get
estimated that at least half of Section
action from the executive branch. Its
8 HUD contract decisions were politi-
status: Passed in both chambers, with
cally motivated and went on to say
approval last week in the House by a
that Members of Congress as well as
vote of 410 to 3. Any businessman can
former Reagan administration offi-
see what's going on here: Congress is
cials had improperly lobbied HUD.
sticking it to its competition.
Rep. Tom Lantos asked: "Would
The anti-lobbyist bill requires any-
you like to rephrase your last few sen-
one who is seeking a federal contract
tences, because they didn't strike a
or grant to disclose the identity of the
very reasonable chord?" Mr. Montic-
lobbyist who helped him get it. West
ciolo quickly backed down from his
Virginia's Senator Robert Byrd de-
heresy.
vised the bill after a private lobbyist
We have no real problem with Sen-
beat him to the pork barrel for one of
ator Byrd's attempt to force lobbyists
his constituents.
into full disclosure, but why not man-
Recall that Senator Byrd stepped
date the same treatment for Con-
down as Majority Leader last year to
gress? Executive-branch agencies al-
chair the Appropriations Committee,
ready keep thorough records of their
saying then that he'd now be in a bet-
contacts with lobbyists, but not with
ter position to funnel money to West
Members of Congress. A good way to
Virginia. Officials at West Virginia
tell which congressional calls to an ex-
University discovered last month how
ecutive agency are legitimate busi-
seriously Senator Byrd took his re-
ness and which are Jim Wright-style
newed commitment to the pork bar-
arm-twisting would be to have the
rel: he withdrew his support for a fed-
agencies publicly report all contacts
erally funded research center on their
with Members and their staff on spe-
campus. The university had sinned
cific contracts or cases.
against Beltway orthodoxy by hiring a
This idea was actually floated on
lobbying firm to secure funds for the
Capitol Hill, and Congress recoiled
project. Mr. Byrd resented this.
more or less the way Bela Lugosi did
"Why," he asked the school's offi-
at the sight of a cross. In fact, Con-
cials, "do you waste your money on a
gress has just made such reports ille-
lobbyist when I'm being paid to be
gal: The current Interior Department
your Senator?" He thereupon intro-
appropriations bill carries with it a
duced his anti-lobbying bill, and his
measure that flatly prohibits its em-
colleagues whooped it through both
ployees from logging any contacts
chambers.
with the legislative branch.
Meanwhile, the Beltway bellows on
What's Congress afraid of? Per-
for yet another month about "influ-
haps if reporters or even average citi-
ence peddling" at HUD. Ethics aside,
zens had access to a record of such
one of the most interesting revelations
congressional interventions it'd be-
from the HUD scandal is that so
come obvious what much of modern
many developers felt they had to by-
Washington is all about. Voters might
pass a largely Democratic Congress
see that a Congressman's job today
and hire professional lobbyists to win
has less to do with forming public pol-
contracts from a Republican adminis-
icy and more to do with helping spe-
tration. In fact, over the past decade
cial interests get their piece of the S1
the number of lobbyists has gone up
trillion federal pie Congress bakes ev-
by some 50%. Divided government is
ery year. In turn, grateful PACs un-
fostering competition-and Congress
derwrite their incumbencies.
doesn't like it.
It will be hard to take Washing-
Of course, the Members resent the
ton's handling of the ethics issue seri-
notion that there's anything analogous
ously until it subjects itself to the
between what they call "constituent
same commandments it keeps hand-
service' the pressure they exert on
ing down for everyone else to obey.
behalf of special interests or cam-
The Byrd lobbying amendment should
paign contributors-and what they
include Congress.
NATION
The Politics of Influence Peddling
GERO SYGMA
Monticciolo (left) implied that congressional peddling is similar to private lobbying efforts, which irked Lantos (right).
SUMMARY: Congressmen often
political issues being dealt with - it goes
said. struggling to find an answer.
exert pressure on government
back [to the days of] Johnson and Nixon
"So you would like to back up and start
agencies to get favorable
and Ford and Carter. I mean. it's no differ-
all over again?" Lantos said.
treatment for pet projects, but
ent - the process - in terms of political
"In terms of our role in terms of dealing
they resent suggestions that such
[pressures]. I'm certain that many mem-
with the issue. certainly there were -
congressional lobbying is akin to
bers even of this committee have inquired
said Monticciolo. floundering.
private lobbying. Most lawmakers
of HUD. have asked HUD to consider is-
"You are not answering my question.
view lobbying as part of their duty
sues. to reconsider issues. to legitimately
Mr. Monticciolo. and I will direct you to
and oppose plans to record these
support their constituents' efforts in dealing
answer the question."
activities with federal agencies.
with projects and issues."
"Would you please
rephrase the
Lantos was not pleased. "Are you sug-
question?"
om Lantos did not like the way Jo-
gesting that if Congresswoman [Marge]
"I will. and please listen when I ask
T
seph Monticciolo answered his
Roukema approaches a HUD office on be-
questions."
question.
half of a project in her district. that is
Monticciolo obviously had not listened
Monticciolo. the former New York re-
analogous to James Watt getting $300,000
to the question. because he had given the
gional administrator for the Department of
for a phone call?" he asked.
wrong answer - he had suggested that
Housing and Urban Development. sat at
"Oh. absolutely not. Absolutely not."
some congressmen use the power to over-
the witness table July 28 to testify about
Monticciolo said. backing away quickly
see agencies such as HUD for reasons other
influence peddling at HUD. Lantos. a Cali-
from a position few are willing to maintain
than to ensure that the department runs
fornia Democrat and chairman of the Gov-
before a congressional committee.
fairly and efficiently. He had said that
emment Operations Subcommittee on Em-
"Well then." Lantos pressed. "would
members of Congress requested officials at
ployment and Housing. wanted him to
you like to rephrase your last few sentences.
HUD to give special consideration to spe-
express outrage at the preferential treat-
because they didn't - didn't strike a very
cific projects: worse. he had implied that
ment given those companies that hired Rea-
reasonable chord?"
there is a similarity between the kind of
gan administration alumni to lobby for
Monticciolo fumbled for an answer:
political pressure exerted by congressmen
HUD money. Monticciolo. however. made
"Well. I wasn't dealing with - I never dealt
and that exerted by former administration
the mistake of indicting Congress on the
with those individuals. I never dealt with
officials lobbying for their clients' projects.
same charge.
them. I had no relationship with them."
Congressional committees frown on sug-
"You are appalled [by lobbying bv con-
"But you're under oath. Mr. Montic-
gestions of such equivalence.
gressmen at HUD]," Lantos asserted.
ciolo." Lantos reminded him. "We are con-
There are. after all. differences between
"Yes. sir." Monticciolo answered.
ducting this hearing in a very cordial fash-
the motives of lobbyists and congressmen
"Are you also surprised?"
ion. But you have to be precise in the
promoting their pet programs. For exam-
"Yes. I think we all have built percep-
statements you make."
ple. ex-Interior Secretary Watt was paid
tions of things. and we know there are
"I apologize if I tried - Monticciolo
hefty consulting fees to push for HUD
22
INSIGHT SEPTEMBER 18. 198
Because lobbying is accepted, the lines are often
crossed and it becomes more than delivering a
benefit to a needy constituent."
funding of his clients' projects. Congress-
turn around and deliver benefits to a con-
men were not though of course devel-
bying is described by a former official of
gressman at election time."
opers are often generous contributors to the
the Commerce Department's Economic
Liedl says pressure by congressmen was
Development Administration. which was
campaigns of those legislators who do the
responsible for as many unworthy projects
most for their businesses. The difference is
set up to funnel federal aid to depressed
at HUD as was pressure by outside lobby-
areas. The EDA has become notorious as
lobbyists are trying to make money; con-
ists. But he says it is hard to prove this
gressmen are just trying to get reelected.
a source of pork for congressmen whose
contention because departments do not
The differences in motive, though, do
districts are prosperous but who insist the
keep track of their contacts with members
not necessarily translate into differences in
rules be overridden for particular projects
and their staffs as they do with lobbyists:
policy: Projects in each case are given out
(Insight. May 15). The former official says
"What is missing from the HUD hearings
on the basis of political contacts rather than
there is no pretense when it comes to mem-
is a public record of the extent to which
merit. For example, Lloyd L. Hayes, a
bers getting their way. In discussing a proj-
congressmen lobbied HUD to get favors for
former mayor of Port Arthur, Texas. and a
ect that had repeatedly been ruled ineligible
their powerful campaign contributors."
major Democratic campaign contributor.
for EDA funds by the EDA staff, including
Kenneth R. Mayer, an assistant profes-
told The New York Times in August. "I am
the department's inspector general. he says
sor of political science at the University of
sure he [Democratic Rep. Jack M. Brooks
a Senate staffer "told me that it was patently
Jr. was helpful" in getting HUD money for
obvious that the program was ineligible,
Park Central. a $150 million housing and
but that the senator didn't care that it was
office project Hayes runs in Port Arthur.
ineligible. just that EDA was the closest
Yet congressmen are quick to stress that
program that it would fit into,"
Liedl argues that there would be less
congressional lobbying is not equivalent to
private lobbying. The political manip-
lobbying by Congress if departments kept
P.F. GEHU SYGMA
ulation by the lobbyist is appalling. they
thorough records of their contacts. as they
argue. but political pressure on the same
do with private lobbyists. "If there were a
issue by a congressman is a proper part of
requirement that whenever a member of
his duties. Rep. Christopher Shays. a Con-
Congress or his staff called an agency offi-
necticut Republican and a member of the
cial, a record was made of that, it would be
subcommittee. was careful to make this
a way to distinguish legitimate oversight
distinction when he asked Monticciolo later
from political arm-twisting. Without a rec-
ord we can't know."
in the hearing about any contacts he had
had with Sen. Alfonse M. D'Amato. a
Such reporting requirements are vigor-
New York Republican.
ously resisted by Congress. Becky Norton
"Is it your testimony that he never asked
Dunlop. while assistant secretary for na-
to promote any project?" Shays asked. add-
tional parks at the Interior Department,
ing: "And see. there is nothing wrong with
asked staff members to report any inquiries
a senator asking to promote a certain proj-
made by congressmen or their staffs. She
ect. so I don't have any problem with that."
says. "We were not trying to inhibit the
"I don't either." Monticciolo responded.
Park Service people from talking to mem-
"because certainly I've had elected officials
bers of Congress. or members of Congress
call me to promote projects all the time."
from expressing their concerns to the Park
"Right. So there's nothing wrong with
"No. sir."
Opinion is not so unanimous outside the
RICHARD KOZAK INSIGHT
Service: [we] just needed to know what
that." Shavs said.
members of Congress were concerned
about so that we could be responsive."
The plan was opposed by much of the
hearing rooms. Mark B. Liedl. for one.
agency's staff and by a number of congress-
director of the Heritage Foundation's Con-
men. who called her to complain. Dunlop
Dunlop: Staff guards ties with Congress.
gress Assessment Project. says that lobby-
explains that agency staff members often
ing "is only appropriate if the sole measure
work closely with Congress and guard their
Wisconsin who studies congressional over-
of a congressman's worth is the amount of
ties. "If [staff members] build up personal
sight. says, "One of the problems is that it's
pork he can deliver to a favored con-
relationships with the members of the com-
almost impossible to prove that a con-
stituent." Yet he admits that a congress-
mittees. they will get
funds they feel
gressman's support was bought. because
man's ability to bring projects to his district
they need that the management of the de-
you'r talking about PAC contributions and
is considered a main gauge of his success.
partment doesn't have as a priority."
honoraria. for which there are all sorts of
"It's not seen as immoral or corrupt. It is
Congress ultimately responded to the
disingenuous explanations, like. 'We're
simply how the system works. It is a system
reporting plan by making it illegal. The
just keeping the lines of communication
that views a congressman as someone who
fiscal 1990 appropriation bill for the Inte-
open: we're making sure we have access to
delivers benefits to constituents." However.
rior Department includes the provision:
make our case.' There's a lot of behind-the-
"None of the funds available under this
Liedl says. "because lobbying is accepted,
door lobbying where congressmen go over
the lines are often crossed and it becomes
[bill] may be used to prepare reports on
and say, 'Keep this thing in the budget: it's
more than delivering a benefit to a needy
contacts between employees of the Depart-
really worthwhile. so that everyone knows
ment of the Interior and Members and
constituent. It becomes delivering benefits
they're in favor of it."
to a powerful constituent. who can then
Committees of Congress and their staff."
An example of this congressional lob-
- Eric Felten
INSIGHT SEPTEMBER 18. 1989
23
THE WALL STREET JOURNAL TUESDAY, SEPTEMBER 19, 1989
REVIEW & OUTLOOK
Congress's Ethics Priorities
In the wake of the Jim Wright and
call "influence peddling"'-defined as
Tony Coelho ethics scandals, bills
former Republican administration of-
have been introduced to limit PACs,
ficials lobbying on behalf of paying
ban honorariums and restrict lobbying
clients.
by former Members and congres-
This theological distinction was
sional staffers. Status: All are stalled.
raised directly at one of the recent
But one ethics-related bill is doing
congressional hearings into the HUD
very well, this one to place curbs on
scandal. Former HUD Regional Ad-
the outside lobbyists who often com-
ministrator Joseph Monticciolo had
pete with Members of Congress to get
estimated that at least half of Section
action from the executive branch. Its
8 HUD contract decisions were politi-
status: Passed in both chambers, with
cally motivated and went on to say
approval last week in the House by a
that Members of Congress as well as
vote of 410 to 3. Any businessman can
former Reagan administration offi-
see what's going on here: Congress is
cials had improperly lobbied HUD.
sticking it to its competition.
Rep. Tom Lantos asked: "Would
The anti-lobbyist bill requires any-
you like to rephrase your last few sen-
one who is seeking a federal contract
tences, because they didn't strike a
or grant to disclose the identity of the
very reasonable chord?" Mr. Montic-
lobbyist who helped him get it. West
ciolo quickly backed down from his
Virginia's Senator Robert Byrd de-
heresy.
vised the bill after a private lobbyist
We have no real problem with Sen-
beat him to the pork barrel for one of
ator Byrd's attempt to force lobbyists
his constituents.
into full disclosure, but why not man-
Recall that Senator Byrd stepped
date the same treatment for Con-
down as Majority Leader last year to
gress? Executive-branch agencies al-
chair the Appropriations Committee,
ready keep thorough records of their
saying then that he'd now be in a bet-
contacts with lobbyists, but not with
ter position to funnel money to West
Members of Congress. A good way to
Virginia. Officials at West Virginia
tell which congressional calls to an ex-
University discovered last month how
ecutive agency are legitimate busi-
seriously Senator Byrd took his re-
ness and which are Jim Wright-style
newed commitment to the pork bar-
arm-twisting would be to have the
rel; he withdrew his support for a fed-
agencies publicly report all contacts
erally funded research center on their
with Members and their staff on spe-
campus. The university had sinned
cific contracts or cases.
against Beltway orthodoxy by hiring a
This idea was actually floated on
lobbying firm to secure funds for the
Capitol Hill, and Congress recoiled
project. Mr. Byrd resented this.
more or less the way Bela Lugosi did
"Why," he asked the school's offi-
at the sight of a cross. In fact, Con-
cials, "do you waste your money on a
gress has just made such reports ille-
lobbyist when I'm being paid to be
gal: The current Interior Department
your Senator?" He thereupon intro-
appropriations bill carries with it a
duced his anti-lobbying bill, and his
measure that flatly prohibits its em-
colleagues whooped it through both
ployees from logging any contacts
chambers.
with the legislative branch.
Meanwhile, the Beltway bellows on
What's Congress afraid of? Per-
for yet another month about "influ-
haps if reporters or even average citi-
ence peddling" at HUD. Ethics aside,
zens had access to a record of such
one of the most interesting revelations
congressional interventions it'd be-
from the HUD scandal is that so
come obvious what much of modern
many developers felt they had to by-
Washington is all about. Voters might
pass a largely Democratic Congress
see that a Congressman's job today
and hire professional lobbyists to win
has less to do with forming public pol-
contracts from a Republican adminis-
icy and more to do with helping spe-
tration. In fact, over the past decade
cial interests get their piece of the S1
the number of lobbyists has gone up
trillion federal pie Congress bakes ev-
by some 50%. Divided government is
ery year. In turn, grateful PACs un-
fostering competition-and Congress
derwrite their incumbencies.
doesn't like it.
It will be hard to take Washing-
Of course, the Members resent the
ton's handling of the ethics issue seri-
notion that there's anything analogous
ously until it subjects itself to the
between what they call "constituent
same commandments it keeps hand-
service' the pressure they exert on
ing down for everyone else to obey.
behalf of special interests or cam-
The Byrd lobbying amendment should
paign contributors-and what they
include Congress.
NATION
The Politics of Influence Peddling
SYGMA
Monticciolo (left) implied that congressional peddling is similar to private lobbying efforts, which irked Lantos (right).
SUMMARY: Congressmen often
political issues being dealt with - it goes
said. struggling to find an answer.
exert pressure on government
back [to the days of] Johnson and Nixon
"So you would like to back up and start
agencies to get favorable
and Ford and Carter. I mean. it's no differ-
all over again?" Lantos said.
treatment for pet projects, but
ent - the process - in terms of political
"In terms of our role in terms of dealing
they resent suggestions that such
[pressures]. I'm certain that many mem-
with the issue. certainly there were -
congressional lobbying is akin to
bers even of this committee have inquired
said Monticciolo. floundering.
private lobbying. Most lawmakers
of HUD. have asked HUD to consider is-
"You are not answering my question.
view lobbying as part of their duty
sues. to reconsider issues. to legitimately
Mr. Monticciolo. and I will direct you to
and oppose plans to record these
support their constituents' efforts in dealing
answer the question."
activities with federal agencies.
with projects and issues."
"Would you please
rephrase. the
Lantos was not pleased. "Are you sug-
question?"
om Lantos did not like the way Jo-
gesting that if Congresswoman [Marge]
"I will. and please listen when I ask
T
seph Monticciolo answered his
Roukema approaches a HUD office on be-
questions."
question.
half of a project in her district. that is
Monticciolo obviously had not listened
Monticciolo. the former New York re-
analogous to James Watt getting $300.000
to the question. because he had given the
gional administrator for the Department of
for a phone call?" he asked.
wrong answer - he had suggested that
Housing and Urban Development. sat at
"Oh. absolutely not. Absolutely not."
some congressmen use the power to over-
the witness table July 28 to testify about
Monticciolo said. backing away quickly
see agencies such as HUD for reasons other
influence peddling at HUD. Lantos. a Cali-
from a position few are willing to maintain
than to ensure that the department runs
fornia Democrat and chairman of the Gov-
before a congressional committee.
fairly and efficiently. He had said that
emment Operations Subcommittee on Em-
"Well then." Lantos pressed. "would
members of Congress requested officials at
ployment and Housing. wanted him to
you like to rephrase your last few sentences.
HUD to give special consideration to spe-
express outrage at the preferential treat-
because they didn't - didn't strike a very
cific projects: worse. he had implied that
ment given those companies that hired Rea-
reasonable chord?"
there is a similarity between the kind of
gan administration alumni to lobby for
Monticciolo fumbled for an answer:
political pressure exerted by congressmen
HUD money. Monticciolo. however. made
"Well. I wasn't dealing with - I never dealt
and that exerted by former administration
the mistake of indicting Congress on the
with those individuals. I never dealt with
officials lobbying for their clients' projects.
same charge.
them. I had no relationship with them."
Congressional committees frown on sug-
"You are appalled [by lobbying by con-
"But you're under oath. Mr. Montic-
gestions of such equivalence.
gressmen at HUD]," Lantos asserted.
ciolo." Lantos reminded him. "We are con-
There are, after all. differences between
"Yes. sir." Monticciolo answered.
ducting this hearing in a very cordial fash-
the motives of lobbyists and congressmen
"Are you also surprised?"
ion. But you have to be precise in the
promoting their pet programs. For exam-
"Yes. I think we all have built percep-
statements you make."
ple. ex-Interior Secretary Watt was paid
tions of things. and we know there are
"I apologize if I tried - Monticciolo
hetty consulting fees to push for HUD
INSIGHT SEPTEMBER 18. 198
22
Because lobbying is accepted, the lines are often
crossed and it becomes more than delivering a
benefit to a needy constituent."
funding of his clients' projects. Congress-
turn around and deliver benefits to a con-
bying is described by a former official of
men were not - though of course devel-
gressman at election time."
opers are often generous contributors to the
the Commerce Department's Economic
Liedl says pressure by congressmen was
Development Administration. which was
campaigns of those legislators who do the
responsible for as many unworthy projects
most for their businesses. The difference is
set up to funnel federal aid to depressed
at HUD as was pressure by outside lobby-
areas. The EDA has become notorious as
lobbyists are trying to make money; con-
ists. But he says it is hard to prove this
gressmen are just trying to get reelected.
a source of pork for congressmen whose
contention because departments do not
The differences in motive, though, do
districts are prosperous but who insist the
keep track of their contacts with members
not necessarily translate into differences in
rules be overridden for particular projects
and their staffs as they do with lobbyists:
policy: Projects in each case are given out
(Insight. May 15). The former official says
"What is missing from the HUD hearings
on the basis of political contacts rather than
there is no pretense when it comes to mem-
is a public record of the extent to which
merit. For example, Lloyd L. Hayes, a
bers getting their way. In discussing a proj-
congressmen lobbied HUD to get favors for
former mayor of Port Arthur, Texas. and a
ect that had repeatedly been ruled ineligible
their powerful campaign contributors."
major Democratic campaign contributor.
for EDA funds by the EDA staff, including
Kenneth R. Mayer, an assistant profes-
told The New York Times in August. I am
the department's inspector general. he says
sor of political science at the University of
sure he [Democratic Rep. Jack M. Brooks
a Senate staffer "told me that it was patently
Jr.] was helpful" in getting HUD money for
obvious that the program was ineligible,
but that the senator didn't care that it was
Park Central. a $150 million housing and
office project Hayes runs in Port Arthur.
ineligible. just that EDA was the closest
program that it would fit into."
Yet congressmen are quick to stress that
Liedl argues that there would be less
congressional lobbying is not equivalent to
private lobbying. The political manip-
lobbying by Congress if departments kept
P.F. GEHO SYGMA
ulation by the lobbyist is appalling. they
thorough records of their contacts. as they
argue. but political pressure on the same
do with private lobbyists. "If there were a
requirement that whenever a member of
issue by a congressman is a proper part of
his duties. Rep. Christopher Shays. a Con-
Congress or his staff called an agency offi-
necticut Republican and a member of the
cial, a record was made of that, it would be
subcommittee. was careful to make this
a way to distinguish legitimate oversight
distinction when he asked Monticciolo later
from political arm-twisting. Without a rec-
ord we can't know."
in the hearing about any contacts he had
had with Sen. Alfonse M. D'Amato. a
Such reporting requirements are vigor-
New York Republican.
ously resisted by Congress. Becky Norton
"Is it your testimony that he never asked
Dunlop. while assistant secretary for na-
to promote any project?" Shays asked. add-
tional parks at the Interior Department.
ing: "And see. there is nothing wrong with
asked staff members to report any inquiries
a senator asking to promote a certain proj-
made by congressmen or their staffs. She
ect. so I don't have any problem with that.'
says, "We were not trying to inhibit the
"I don't either." Monticciolo responded.
Park Service people from talking to mem-
"because certainly I've had elected officials
bers of Congress, or members of Congress
call me to promote projects all the time."
from expressing their concerns to the Park
"Right. So there's nothing wrong with
"No. sir."
Opinion is not so unanimous outside the
RICHARD KOZAK INSIGHT
Service: [we] just needed to know what
that." Shavs said.
members of Congress were concerned
about so that we could be responsive."
The plan was opposed by much of the
hearing rooms. Mark B. Liedl. for one.
agency's staff and by a number of congress-
director of the Heritage Foundation's Con-
men. who called her to complain. Dunlop
Dunlop: Staff guards ties with Congress.
gress Assessment Project. says that lobby-
explains that agency staff members often
ing "is only appropriate if the sole measure
work closely with Congress and guard their
Wisconsin who studies congressional over-
of a congressman's worth is the amount of
ties. "If [staff members] build up personal
sight. says, "One of the problems is that it's
pork he can deliver to a favored con-
relationships with the members of the com-
almost impossible to prove that a con-
stituent." Yet he admits that a congress-
mittees. they will get
funds they feel
gressman's support was bought. because
man's ability to bring projects to his district
they need that the management of the de-
you're talking about PAC contributions and
is considered a main gauge of his success.
partment doesn't have as a priority."
honoraria. for which there are all sorts of
"It's not seen as immoral or corrupt. It is
Congress ultimately responded to the
disingenuous explanations, like, 'We're
simply how the system works. It is a system
reporting plan by making it illegal. The
just keeping the lines of communication
that views a congressman as someone who
fiscal 1990 appropriation bill for the Inte-
open: we're making sure we have access to
delivers benefits to constituents." However.
rior Department includes the provision:
make our case.' There's a lot of behind-the-
"None of the funds available under this
Liedl says. "because lobbying is accepted,
door lobbying where congressmen go over
the lines are often crossed and it becomes
[bill] may be used to prepare reports on
and say, 'Keep this thing in the budget: it's
more than delivering a benefit to a needy
contacts between employees of the Depart-
really worthwhile.' so that everyone knows
ment of the Interior and Members and
constituent. It becomes delivering benefits
they in favor of it."
to a powerful constituent. who can then
Committees of Congress and their staff."
An example of this congressional lob-
- Eric Felten
INSIGHT SEPTEMBER 18. 1989
23
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
05. Memo
From C. Boyden Gray to POTUS
10/13/89
Re: Executive Agency Reports of Congressional Contacts (2
pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff to the President, Office of the
Open on Expiration of PRA
Series:
Sununu, John, Files
(Document Follows)
Subseries:
White House Offices File
By H (NLGB) on 12/12/07
WHORM Cat.:
File Location:
Counsel (1989)
Date Closed:
11/30/2004
OA/ID Number:
29177-008
FOIA/SYS Case #:
1998-0004-F
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes |(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
THE WHITE HOUSE
WASHINGTON
October 13, 1989
MEMORANDUM FOR THE PRESIDENT
MEROUGH:
GOVERNOR SUNUNU
FROM:
C. BOYDEN GRAY
SUBJECT:
Executive Agency Reports of Congressional Contacts
I.
Action Forcing Event
On Sept. 10, you asked me to see whether the Interior appro-
priations bill (H.R. 2788) might provide an occasion for a line-
item attack on congressional micromanagement. Sec. 117 provided
that no funds covered by the bill may be used "to prepare reports
on contacts between employees of the Department of the Interior
and Members and Committees of Congress and their staff."
II. Analysis
I think this provision would have presented an excellent
opportunity to challenge unconstitutional: micromanagement of the
executive branch. Thanks to fine White House and OMB staff work,
however, sec. 117 was nullified by the Conference Committee. I
should add that even though these efforts deprived us of a test
case in this instance, it is crucial that we continue to go on
record with early and vigorous opposition to such provisions;
without such a record, courts will be much less receptive to our
legal claims.
Nonetheless, this incident may still serve a purpose. An
Executive Order, which would require the logging and reporting of
certain congressional contacts throughout the government, could
be extremely helpful both in promoting good government and in
combatting congressional micromanagement. I have explored this
possibility with the Justice Department, and we believe that such
an Executive Order may offer the best available vehicle for
vindicating Presidential authority. In addition, recent press
attention to sec. 117 and to the role of Congress in H.U.D.
decisionmaking (two examples are attached) suggests that we can
hope for public support on this issue.
While several details are still being discussed, our thought is
to require executive branch officials to log contacts from
Members and their staff that deal with three main categories of
government business: (a) contracts, grants, and similar
dispositions of public funds; (b) agency rulemakings and
adjudications; and (c) criminal, civil, or administrative
investigations of particular individuals or entities.
Such an Executive Order would help deter congressional
micromanagement of the executive branch, especially when aimed at
efforts by your subordinates to carry out their legal duties or
your policies. It would also help prevent "constituency service"
from developing into improper influence or genuine corruption.
Finally, if Congress sought to override the Order through
legislation, a defense of your constitutional authority in the
courts would appear to have a good chance of success.
Needlen + san
I believe we can justify such an Executive Order both for
separation-of-powers reasons and as a "sunshine in government"
device. For its own reasons, however Congress is unlikely to
welcome such a program. Before investing additional resources in
this, it would be helpful to have your tentative reaction. has
have The lan this intend pureed, that
Complete Do not continue project working on this
Other:
Mone a the
adiman clearance 6
pener -
unless you
ribit.
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
06. Memo
From C. Boyden Gray to POTUS
12/22/89
P/S
Re: Regulatory Reform (2 pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff to the President, Office of the
Open on Expiration of PRA
Series:
Sununu, John, Files
(Document Follows)
Subseries:
White House Offices File
By &p (NLGB) on 12/12/07
WHORM Cat.:
File Location:
Counsel (1989)
Date Closed:
11/30/2004
OA/ID Number:
29177-008
FOIA/SYS Case #:
1998-0004-F
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes |(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
THE WHITE HOUSE
WASHINGTON
1989 DEC 22 PM 6: 19
December 22, 1989
MEMORANDUM FOR THE PRESIDENT
file
FROM:
C. BOYDEN GRAY
cma
SUBJECT:
Regulatory Reform
In a recent front-page article, the Wall Street Journal reported
that this Administration has ended the push for deregulation and
has started a campaign of "creeping reregulation." I understand
that both Dick Darman and Mike Boskin are planning to give you
their reactions to the criticisms in the article. Unfortunately,
it appears that those criticisms are largely on target. Although
I no longer have an official role in the regulatory process, I
want to express two concerns that I have about that process from
my vantage point in the Counsel's Office.
As you know, perhaps the most important regulatory reform to come
out of your efforts with the Task Force on Regulatory Relief is
Executive Order 12291, which requires that all proposed
regulations be submitted to OMB (and specifically to OMB's Office
of Information and Regulatory Affairs (OIRA) ) for review.
Unfortunately, it appears that this review process is often
circumvented or even ignored altogether. Of course, when this
process breaks down, the most serious problem is that there is no
independent review to ensure that the expected benefits of a
proposed regulation outweigh its expected costs. But there are
two other less obvious problems that arise when the process of
E.O. 12291 is not working smoothly.
The first is a potential ethics problem. When the 12291 process
works correctly, OIRA serves as the impartial forum in the
Executive Office of the President in which all diverse views are
heard and balanced. The process has been predictable, fair, and
well known to the Washington lobbying community, the Hill, and
the public at large. When the process breaks down, however, the
various parties do not know where to go and are forced to use a
scattershot approach to communicate to staff in all parts of the
Executive Office of the President and the West Wing in ways that
are usually not coordinated, that often do not have the
appearance of fairness, and that are sometimes wholly
inappropriate.
For instance, the National Institute of Health (NIH) is currently
developing conflict of interest standards governing the
biotechnology industry. Although these standards should clearly
GO through the 12291 process, it appeared until recently that NIH
was going to issue them without OIRA review. Early last week, I
received several messages from the head of a biotechnology
company saying that he urgently needed to talk with me about the
proposed standards (which, I later found, would put the U.S
biotechnology industry at a terrible competitive disadvantage
because of its restrictions on relationships between private
companies and the academic community). Only after discussing the
matter with members of my staff did I decide that it would be
appropriate for me to meet with him -- and even then with some
concern about the appearance of impropriety.
Until the 12291 process is again functioning smoothly and
predictably, many White House Officials will be faced with
similarly difficult choices --whether to ignore a voice that has
a legitimate need to be heard or to run the risk that a contact
with private party might be viewed as improper.
The second problem arises in the legislative arena. OIRA does
not only review regulatory decisions, but is also charged with
reviewing legislative initiatives proposed by the Administration.
Unfortunately, however, OIRA's role in this process has been
largely overlooked in recent months. In the Clean Air Act, for
example, OIRA was not involved in the drafting process early
enough to comment on the Act's alternative fuel provisions. It
now appears that a fleet requirement may be the most cost-
effective approach for spurring innovation with respect to
alternative fuel vehicles, but OIRA was never given the chance to
push for such an approach until after our legislation had been
submitted.
For the above reasons, it is important that regulatory reform and
the review process set forth in E.O. 12291 be reaffirmed
vigorously and publicly.
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
07. Memo
From C. Boyden Gray to John H. Sununu
9/20/89
P-2, P-5, (b)(6)
Re: Justice Robert E. Jones [FOIA RESTRICTIONS
REDACTED] (2 pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff to the President, Office of the
Series:
Sununu, John, Files
Open on Expiration of PRA
Subseries:
White House Offices File
(Document Follows)
WHORM Cat.:
By HP (NLGB) on 12/12/07
File Location:
Counsel (1989)
Date Closed:
11/30/2004
OA/ID Number:
29177-008
FOIA/SYS Case #:
1998-0004-F
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy |(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
THE WHITE HOUSE
WASHINGTON
September 20, 1989
MEMORANDUM FOR GOVERNOR JOHN H. SUNUNU
THE
CHIEF OF STAFF
FROM:
C. BOYDEN GRAY
CAN
has Seenif of STAFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Justice Robert E. Jones
In response to Senator Packwood's request, my office and the
Department of Justice have been looking at Justice Jones' record.
A few points emerge.
O First, regarding State V. Henry, the case in which Justice
Jones struck down Oregon's pornography statute: Justice Jones'
opinion has not only Paul Weyrich, but also the National
Coalition Against Pornography, Focus on the Family, and the
Childrens Defense League up in arms, with, I am sure, more to
follow (e.g. Citizens for Decency in Media). Moreover, their
reaction is not unreasonable. Far from being compelled by prior
law, Justice Jones' opinion overruled a prior Oregon Supreme
Court opinion, read the Oregon "First Amendment" equivalent much
more generously than Justice Brennan has read the U.S.
Constitution, and is not even persuasive on its own terms.
(b)(6)
Finally, I understand
that Senator Packwood thinks it important that the opinion was
for a unanimous Court, but given the Oregon Supreme Court's
reputation as extremely activist, I would not attach much weight
to that.
o Second, this is not a single lapse. In Smith V. Employment
Division, Justice Jones wrote an opinion holding that a drug and
alcohol rehabilitation counselor fired for ingesting peyote
during a religious ceremony was entitled to unemployment
compensation under the First Amendment's free exercise clause.
Silly though it is, this result was certainly defensible under
prior Supreme Court cases regarding religious practices and
unemployment benefits. The Supreme Court, however, took the case
and held that if the religious use of peyote was illegal under
Oregon law, the State could withhold the unemployment
compensation. It then sent the case back to the Oregon Court for
a ruling on Oregon law. Justice Jones then ruled that such use
was illegal under Oregon law, but nevertheless permitted under
-2-
the First Amendment's free exercise clause. The Supreme Court
has taken the case again.
(ble)
Finally, a couple of process points.
--First, despite repeated requests, Senators Packwood and
Hatfield have not provided two other plausible candidates. They
have given the Justice Department six other names, but have not
provided addresses or biographical information. The Department
states that several were not in Martindale-Hubbell, the national
listing of lawyers, and those that have been located are not
considered serious candidates in the State. Thus they are not
really complying with the three name rule.
--Second, this vacancy does not occur until November 24,
1989. Given that there are a number of current vacancies,
despite Senator Packwood's desire to move quickly on this
district court seat, it does not belong at the head of the list.
GO
file
Boyden
e
Ca
dd
SE
re
Gray
he
li
isions
of
)I
a CIVII cause 01 action 101 amu
constitutional rights, to provide that any person with
standing can sue for a violation of his civil rights on the
grounds that the defendant has deliberately gerrymandered
a congressional district in order to increase the congressional
representation of a particular political party.
Section 4 amends the bribery and corruption provisions of
the federal criminal code to prohibit a senator or representative
from trying to influence the selection of a particular contractor
by the Executive Branch.
Section 5 prohibits a convicted felon from being hired
by a congressional office.
Section 6 amends the Federal Election Campaign Act to
prohibit the conversion of unused campaign funds to personal
use, and to apply this prohibition to all members of Congress,
effective after the next election.
Section 7 (a) would amend the bribery and corruption section
of the United States criminal code to prohibit a person or
organization with over a $100 interest in legislation referred
to a particular congressional committee from making any
political contribution to a member of that committee or to
his campaign committee.
Section 7 (b) would make it clear that the term "anything
of pecuniary value," for purposes of federal corruption statutes,
includes sexual favors.
Section 8 would impose limitations on the use of franked
mail to effectively repeal last year's massive expansion of
the permissible use of franked mail, particularly in election
years.
BE IT ENACTED BY THE SENATE AND THE HOUSE OF REPRESENTATIVES OF THE UNITED
STATES IN CONGRESS ASSEMBLED, THAT this Act may be cited as the "Campaign
Reform and Ethics in Congress Act of 1989."
n
Sec.
Enforcement of Congressional Ethics
Section 591 of Title 28, United States Code, is amended by adding
in subsection (b) the following new paragraph and renumbering paragraphs
(1) through (8) accordingly:
"(1) any member of the Senate or the House of Representatives and
any staff member of the Senate or the House of Representatives
compensated at a rate in excess of $50,000 per annum;".
Section
Redistricting Fraud
Section 1 of Public Law 96-170 is amended by adding at the appropriate
place the following new subsection:
"() For purposes of this section, the term "deprivation of any
rights, privileges, or inmunities sccured by the Constitution and laws"
includes the establishment of the boundaries of any congressional district
in any manner which is non-compact or otherwise irregular for the purpose
of increasing the congressional representation of a particular political
party."
Section
of Public Trust
Prohibition on Employment of Convicted Felons for Positions
Public Law 91-665 is amended by adding at the appropriate place the
following new section:
"Section
Prohibition on employment of felons
"No person who has been convicted in any court of a crime punishable
by imprisonment for a term exceeding one year may be employed by the
Senate or House of Representatives or by any Senator or Representative. "
(a) Section 317 of Public Law 92-225, as renumbered by section 105
of Public Law 94-283, is amended to read as follows:
"Sec. 317. Use of contributed amounts for certain purposes; rules
of Commission
"Amounts received by a candidate as contributions that are in
excess of any amount necessary to defray his expenditures, and any
other amounts contributed to an individual for the purpose of supporting
his activities as a holder of Federal office, may be used by such
candidate or individual, as the case may be, solely to defray any
ordinary and necessary expenses incurred by him in connection with his
duties as a holder or federal office or as a candidate, or for the
purpose of contributions to any organization described in section
170(c) of Title 26. To the extent any such contribution, amount
contributed, or expenditure thercof is not otherwise required to be
disclosed under the provisions of this subchapter, such contribution,
amount contributed, or expenditure shall be fully disclosed in accordance
with rules promulgated by the Commission. The Commission is authorized
to prescribe such rules as may be necessary to carry out the provisions
of this section.
(b) The provisions of this section shall take effect on
February 1, 1991.
Section
Corruption in Government Contracting
Chapter 11 of Title 18, United States Code, is amended by adding at
the appropriate place the following new section:
"Section
Corruption in contracting
'Whoever, being a member of the Senate or House of Representatives,
uses such office to influence the selection of any contractor with any
any executive department or agency, or attempts to do so, shall be fined
not more than $100,000, imprisoned not more than five years, or both."
(a) Section 201 of Title 18, United States Code, is amended
by inserting after subsection (h) the following new section and
by renumbering all successive subsections accordingly:
"(i) Whoever, having an interest in excess of $100 in legislation
which has been referred to a committee of the Senate or House of
Representatives, gives anything of pecuniary value to any member of
such committee, or any agent or campaign committee thereof, or whoever,
being a member of the Senate or the House of Representatives, or an agent
or campaign committee thereof, knowingly or recklessly accepts anything
of pecuniary value from any person or organization having an interest
in excess of $100 in legislation which has been referred to a committee
of which such Senator or Representative is a member, or, upon learning
of the existence of such interest, fails to return anything of pecuniary
value which has been received from such person or organization; or".
(b) Section 201 of Title 18, United States Code, is amended
by inserting after the colon the following:
"anything of value" and "anything of pecuniary value"
include the performance of sexual acts for the benefit of any
person; and".
DRAFT MASS MAILING BILL -- May 8, 1989 -- (B)
SECTION 1. (a) Subsection (a) of section 3210 of title 39,
United States Code, is amended --
(1) in paragraph (3) (B), by striking out "congressional
newsletter or";
(2) in paragraph (5) (D) by striking out "candidate for
public office. For the purpose of this clause (D), the term
'mass mailing' shall mean newsletters and similar mailings of
more than 500 pieces in which the content of the matter mailed
is substantially identical but shall not apply to mailings -- "
and inserting in lieu thereof "candidate for public office,
provided that this prohibition shall not apply to mass mailings
--"; and
(3) in paragraph (6) to read as follows:
(6) (A) It is the intent of Congress that a Member of, or
Member-elect to, Congress may only mail a mass mailing as
franked mail if it is specifically described in subparagraph
(C) of this paragraph and is otherwise not restricted by law or
the rules of the Senate or the House of Representatives for
Members or Members-elect of each respective House.
"(B) For purposes of this section, the term "mass
mailing" means a mailing of more than five hundred pieces
in which the content of the matter mailed is substantially
identical.
Page 2
"(C) The only mass mailings eligible to be mailed as
franked mail are mass mailings --
"(1) which are in direct response to inquiries or
requests from the persons to whom the matter is
mailed;
"(ii) to colleagues in the Congress or to elected
or appointed Government officials (whether Federal,
State, or local);
"(111) of news releases to the communications
media;
"(iv) which consist of individually addressed
responses on a specific issue to constituents who have
previously written on the issue;
"(v) which consist of news announcements on a
specific issue individually addressed to the chief
officer or any member of the board of directors of an
organization with an interest in the specific issue;
" "(vi) which consist of materials not prepared by
or relating to a Member of, or Member-elect to,
Congress; or
"(vii) the sole purpose of which is to give
notice of a town meeting and which is mailable as a
'postcard' as that term is defined in the Domestic
Mail Classification Schedule maintained by the Postal
Rate Commission.
Page 3
(D) The Select Committee on Ethics of the Senate and
the Commission on Congressional Mailing Standards of the
House of Representatives shall prescribe for each
respective House such rules and shall take other actions as
the Committee or the Commission considers necessary and
proper for Members and Members-elect to comply with the
provisions of this paragraph and other pertinent
regulations. Such rules shall include, but not be limited
to, provisions prescribing the time within which mailings
shall be mailed or delivered to any postal facility and the
time when the mailings shall be deemed to have been mailed
at or delivered to comply with the provisions of this
paragraph."
(b) Subsection (c) of section 3210 of title 39, United
States Code, is amended by striking out "newsletters,
SECTION 2. (a) Effective October 1, 1989, subsection (a) (2)
of section 3216 of title 39, United States Code, is amended by
striking out "by a lump sum appropriation to the legislative
branch" and inserting in lieu thereof "from funds appropriated
to (or otherwise available from) the Senate (for costs
attributable to the Senate) and from funds appropriated to (or
otherwise available from) the House (for costs attributable to
the House of Representatives)'
Page 4
(b) Subsection (c) of section 3216 of title 39, United
States Code, is repealed and subsection (d) of such section is
redesignated subsection (c).
SECTION 3. Effective October 1, 1989, there shall be-
(a) within the contingent fund of the Senate, a separate
appropriation account to be known as the "Senate Official Mail
Costs Account", which shall be administered by the Secretary of
the Senate, and
(b) within the fund for Contingent Expenses of the House, a
separate appropriation account to be known as the "House
Official Mail Costs Account", which shall be administered by
the Clerk of the House of Representatives.
Page 5
SECTION 4. The Senate Select Committee on Ethics and the House
Commission on Congressional Mailing Standards shall prescribe
for each respective House rules and regulations governing any
franked mail. Such rules and regulations shall include, for
each Member of each respective House, an allocation from the
amount appropriated for official mail. For Members of the
Senate, such allocation shall be related to the population of
the state representated. The costs for postage for such
franked mail mailed by or for a Member in excess of the amount
of the allocation shall be charged to such Member and shall be
paid by such Member (if the allocation is from the Senate) in
accordance with rules and regulations as may be prescribed by
the Senate Committee on Rules and Administration and (1f the
allocation is from the House) in accordance with such rules and
regulations as may be prescribed by the House Commission on
Congressional Mailing Standards.
Page 6
SECTION 5. (a) Two weeks after the close of each calendar
quarter, or as soon as practicable thereafter, the Sergeant at
Arms and Doorkeeper of the Senate shall send to each Senator a
statement of the cost of postage and paper and of the other
operating expenses incurred as a result of mass mailings, as
defined in subparagraphs (iv) through (vii) of section
3210 (a) (6) (C) of title 39, United States Code, processed for
such Senator during such quarter. The statement shall
separately identify the cost of postage and paper and other
costs, and shall distinguish the costs attributable to
different classes of mass mailings. The statement shall also
include the total cost per capita in the State. A compilation
of all such statements shall be sent to the Committee on Rules
and Administration. A summary tabulation of such information
shall be printed in the Congressional Record next printed after
the statements are received by the Committee and shall be
included in the-semiannual Report of the Secretary of the
Senate. Such summary tabulations shall set forth for each
Senator the following information: the Senator's name, the
total number of pieces of mass-mail mailed during the quarter,
the total cost of such mail, and the cost of such mail divided
by the total population of the State from which the Senator was
elected.
Page 7
(b) Two weeks after the close of each calendar quarter, or
as soon as practicable thereafter, the House Commission on
Congressional Mailing Standards shall send to each Member of
the House of Representatives a statement of the cost of postage
and paper and of the other operating expenses incurred as a
result of mass mailings, as defined in subparagraphs (iv)
through (vii) of section 3210 (a) (6) (C) of title 39, United
States Code, processed for such Member during such quarter.
The statement shall separately identify the cost of postage and
paper and other costs, and shall distinguish the costs
attributable to different classes of mass mailings. The
statement shall also include the total cost per capita in the
district from which such Member was elected. A compilation of
all such statements shall be sent to the House Committee on
House Administration. A summary tabulation of such information
shall be printed in the Congressional Record next printed after
the statements are received by the Committee and shall be
included in the quarterly Report of the Clerk of the House.
Such summary tabulations shall set forth for each Member the
following information: the Representative's name, the total
number of pieces of mass-mailed mailed during the quarter, the
total cost of such mail, and the cost of such mail divided by
/
the total population of the district from which the Member was
elected.
SUMMARY OF CAMPAIGN FINANCE PROPOSALS
Curtailing Political Action Committees (PACs)
O
Eliminates PACs sponsored by corporations, unions and trade associations.
The bulk of PAC contributions come from these "connected" PACs: they
accounted for nearly 90% of the approximately $160 million contributed by
PACs in the 1987-1988 election cycle.
Reduces contribution limits for the remaining PACs, i.e. those not sponsored
by corporations, unions, or trade associations, the so-called "non-connected"
or independent PACs, from $5,000 to $1,000 per candidate per election.
Prohibits corporations, unions and trade associations from using treasury
funds for any PAC administrative or overhead costs, including corporate or
union subsidies for payroll deductions to fund a PAC.
Codifies the Beck Supreme Court decision, holding that union members cannot
be forced to have mandatory union dues go to political causes or
organizations they do not support.
Eliminates "Leadership PACs" by limiting candidates to one committee and by
prohibiting candidate committees from contributing to other candidates.
Prohibits all but political party committees from "bundling".
Subjects independent expenditures, to additional disclaimers.
Strengthening Political Parties
Increases coordinated expenditures limits that parties may spend on behalf of
population for a Senate race; about $46,000 for a House race).
federal candidates (ranges now from $92,000 to about $1.5 million depending on
Reducing Incumbency Advantage
Prohibits the rollover of excess campaign funds into the next election cycle
and prohibits personal use of excess campaign funds.
o Bans the use of unsolicited Franked mail and requires quarterly filings of
the amounts spent on Franked mail.
Fairness in Redistricting
Requires promulgation of criteria for fair redistricting in federal
elections, such as requiring district lines to follow established community
boundaries and standards for compactness. Also emphasizes the need for
congressional and state legislative plans to follow the provisions of the
Voting Rights Act.
Soft Money Disclosure
Requires full disclosure of all soft money contributions and expenditures by
political party committees. Includes disclosure of money spent by labor
unions, corporations and trade associations would to influence a federal
election, including voter registration and get-out-the-vote activities, as
well as any communications which advocate the election or defeat of any
federal candidate.
o
Calls for adoption of realistic soft money allocation guidelines to attribute
the costs of party activities proportionately to federal candidates.
DRAFT
CLOSE HOLD
FACT SHEET
PRESIDENT BUSH'S CAMPAIGN FINANCE PROPOSALS
Today the President announced a comprehensive campaign finance
proposal designed to lessen the power of special economic
interests and restore competition to American congressional
elections. The package reflects the President's strong
commitment to increasing the roles of individuals and the
political parties in the electoral process. It is also designed
to reform the system of campaign finance under which in the 1980s
House incumbents have a 97.7 percent reelection rate and Senate
incumbents a nearly 74 percent reelection rate. The proposals
follow general themes first articulated by the President in his
April 11 speech to the American Society of Newspaper Editors:
Eliminating political action committees (PACs)
supported by corporations, unions or trade
associations, and prohibiting such entities from paying
for the overhead or administrative costs of any
independent PAC.
Banning Congressional honoraria over time.
Strengthening political parties by increasing the
amounts they can spend on behalf of congressional
candidates. This source of funds would permit
legislators to spend less time fund raising, would
ensure that challengers have greater resources with
which to challenge incumbents, and would further limit
the role of special economic interests in elections.
Attacking the "permanent Congress" by reforming the
incumbency advantage. Specifically, the proposals
would prohibit the personal use of excess campaign
funds, drastically reduce congressional mailings under
the Frank, ban the rollover of campaign funds from one
election cycle to the next, and legislate fair neutral
criteria for the redistricting of congressional and
legislative lines that will follow the 1990 census.
Fully disclosing all soft money spent by the political
parties and all labor unions, corporation and trade
associations to influence a federal election.
A more detailed description of the President's campaign finance
reform package follows:
DRAFT
1.
Contribution Limits
Curtailing Political Action Committees (PACs)
The proposal calls for the elimination of PACs
sponsored by corporations, unions and trade
associations. ( This would essentially return the
law to its pre-Federal Election Campaign Act of
1971 status.) The bulk of PAC contributions come
from these corporate, union or trade association
PACs: they accounted for nearly 90% of the
approximately $160 million contributed by PACs in
the 1987-1988 election cycle.
Contribution limits for the remaining PACs, i.e.
those not sponsored by corporations, unions, or
trade associations, the so-called "non-connected"
or independent PACs, would be reduced from $5,000
to [$
] per candidate per election. Freedom
of association guarantees under the First
Amendment probably make it impossible to eliminate
these independent PACs.
Corporations, unions and trade associations would
also be prohibited from using treasury funds for
non-connected PAC administrative or overhead
costs, including corporate or union subsidies for
payroll deductions to fund a PAC.
PAC contributions to national and state political
parties would stay the same ($15,000 per year).
The remaining independent PACs would also be able
to continue funding such participatory activities
as voter registration and get-out-the-vote
programs, which would become fully reportable.
The proposal would codify the Beck Supreme Court
decision, holding that union members cannot be
forced to have mandatory union dues go to
political causes or organizations they do not
support.
"Leadership PACs" would be eliminated by limiting
candidates to one committee and by prohibiting
candidate committees from contributing to other
candidate committees.
All but political party committees would be
prohibited from bundling, the practice where an
organization or its officials solicit
contributions from its employees or members at a
central location, "bundles" them and sends them to
a candidate without affecting the organization's
contribution limits.
DRAFT
Independent expenditures would be subject to
additional notice requirements. Any advertisement
or other political communication paid for by
independent expenditures would have to include
additional disclosure throughout identifying the
person or organization funding it and stating that
it is not authorized by any candidate.
Strengthening Political Parties
O
The proposal increases to $.05 from $.02 times the
voting age population the coordinated expenditure
limits that parties may spend on behalf of federal
candidates (ranges now from $92,000 to about $1.5
million depending on population for a Senate race;
about $46,000 for a House race). This would allow
a larger percentage of contributions to a
candidate to come from political parties.
2.
Reforming the Incumbency Advantage
Limiting the Use of Excess Campaign Funds
O
The rollover of excess campaign funds into the
next election cycle would be prohibited by
requiring that all campaign treasuries be zeroed
out by January 31 following the election. All
excess campaign funds would have to go to:
national and state party committees; the National
Debt Retirement Account of the United States
Treasury, or all campaign contributors as pro-rata
refunds.
The proposal bans the personal use of excess
campaign funds.
House -- House members who are grandfathered
could no longer convert the funds to personal
use.
Senate -- The Legislation would end the
supplementing of official accounts with
excess campaign funds.
Reducing the Advantages of Holding Office
O
The proposal limits the use of unsolicited Franked
mail.
Quarterly filings would be required by all Members
of Congress of the amounts spent on Franked mail.
The reports would be due within 30 days of the
close of the quarter.
DRAFT
Fairness in Redistricting
The proposal calls for the promulgation of
criteria for fair redistricting in federal
elections, such as requiring district lines to
follow established community boundaries and
standards for compactness.
The legislation will emphasize the need for
congressional and state legislative plans to
follow the provisions of the Voting Rights Act.
3.
Soft Money Disclosure
Full disclosure of all soft money contributions and
expenditures by political party committees would be
required under the proposal.
Labor unions, corporations and trade associations would
have to disclose all money spent to influence a federal
election, including voter registration and get-out-the-
vote activities, as well as any communications which
advocate the election or defeat of any federal
candidate.
4.
Congressional Honoraria
The President has proposed ending the acceptance of
honoraria by Members of Congress. Under the proposal,
this ban would be phased in over [four] years.
In the next few days I will also send up legislation to ban
honoraria and to address certain aspects of compensation for
federal officials. This package will include a 25 percent
pay increase for judges, which I have previously recommended,
and a 25 percent increase for certain specialized Executive
Branch personnel, such as NIH research scientists, the Senior
Executive Service and senior level Presidential appoinments.
I will also work with Congress on the development of details
for increasing the pay of those in the Congress as well as
the remainder of the Executive Branch.
file
THE WHITE HOUSE
WASHINGTON
February 27, 1989
MEMORANDUM FOR GOVERNOR JOHN SUNUNU
FROM:
C. BOYDEN GRAY am
SUBJECT:
Personal Travel
This will advise you of my tentative plans to be away
from the area on the following dates:
March 3-5, 1989
Hobe Sound, Florida
(305) 546-2891
April 7-9, 1989
San Francisco, California
(415) 772-5000
Should there be a change in my plans, I will advise you.
FLORIDA
March 3, 1989
Lv: National
4:40 pm
Eastern #889
AR: West Palm Beach
7:04 pm
Hertz rental confirmed
March 5, 1989
Lv: Fort Lauderdale
2:25 p.m.
Delta #3483
Ar: Orlando
3:30 p.m.
Lv: Orlando
4:10 p.m.
Delta #1105
Ar: National
6:02 p.m.
San Francisco, California
April 7-9, 1989
Earl Warren Clerks Reunion
April 7, 1989, Friday
Lv: Dulles
TWA #63
6:05 p.m.
Ar: San Francisco
8:48 p.m.
Hotel: Fairmont
April 8, 1989, Saturday
Planned reunion events
April 9, 1989, Sunday
Lv: San Francisco
TWA #862
7:55 a.m.
Ar: Dulles
3:37 p.m.
Gile
THE WHITE HOUSE
WASHINGTON
THE CHIEF of STAFF
has seen
June 28, 1989
MEMORANDUM FOR JOHN H. SUNUNU
FROM:
C. BOYDEN GRAYCMG
COUNSEL TO THE PRESIDENT
SUBJECT:
Proposed Amendment to the Constitution
-- Flag Burning
Attached is proposed language for a Constitutional Amendment.
The Department of Justice has seen and approved the language. We
are close to an agreement with Thurmond's and Michel's staff on
this language. Senator Dole apparently would prefer a list of
prohibited activity, but I believe he could be convinced to go
along with our language.
Attachment
FLAG PRESERVATION AMENDMENT
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States
authorizing the Congress and the several States to prohibit
desecration of the Flag of the United States.
Whereas the Flag of the United States of America is our
national symbol; it represents liberty and justice, strength and
peace, self-reliance and compassion, equality of rights and
equality of opportunity; the Flag stands in honor of those who
have fought and given their lives to protect all that it
symbolizes; the Flag, accordingly, must be kept inviolate;
Therefore, be it enacted by the Senate and House of
Representatives of the United States of America in Congress
assembled (two-thirds of each House concurring therein) ;
That the following article shall become part of the
Constitution of the United States of America provided that it
shall have been ratified as an amendment to the Constitution by
the legislatures of three-fourths of the several States, as
provided in Article V of the Constitution, within seven years
from the date of its submission to the States by the Congress.
Article --
"The Congress and each State shall have the power to
prohibit the physical desecration of the Flag of the United
States of America."
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
08. Memo
From C. Boyden Gray to Abraham Sofaer
3/30/89
P-5
Re: Draft Contra Aid Legislation (3 pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff to the President, Office of the
Open on Expiration of PRA
Series:
Sununu, John, Files
(Document Follows)
Subseries:
White House Offices File
By IP (NLGB) on 12/12/07
WHORM Cat.:
File Location:
Counsel (1989)
Date Closed:
11/30/2004
OA/ID Number:
29177-008
FOIA/SYS Case #:
1998-0004-F
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
the
THE WHITE HOUSE
WASHINGTON
March 30, 1989
THE CHIEF of STAFF
has seen
MEMORANDUM FOR ABRAHAM SOFAER
FROM:
C. BOYDEN GRAY
SUBJECT:
Draft Contra Aid Legislation
Attached is a copy of what I believe to be the latest version of
the new Contra aid legislation, drafted by AID and the State
Department.
It lacks language authorizing us to withhold obligation of the
funds after November 30. Without such authorization, we will be
unable to honor the informal agreement between Secretary Baker
and the Congressional leadership without violating the
Impoundment Control Act if Congress does not approve obligation
of the funds after November 30.
I believe that we can avoid this possible dilemma under any one
of the following three approaches, each of which has been
approved as workable by the relevant OMB budget experts.
OPTION 1
New section IV (a) (5) :
(A) (5) Title X of the Impoundment Control Act of 1974 shall
not apply to any funds provided under this section that are
withheld from obligation; any funds so withheld shall, after
February 28, 1990, be transferred back to the appropriations
accounts from which such funds were transferred.
OPTION 2
New section IV (g) :
(g) Withholding of funds --
(1) Funds transferred pursuant to sections IV (a) (1)
and (2) of this Act may be withheld from
obligation at the discretion of the President;
2
(2) Any funds so withheld are not subject to the
requirements of Title X of the Impoundment Control
Act of 1974;
(3) If any funds so withheld have not been made
available for obligation by February 28, 1990,
such funds shall after such date be transferred
back to the appropriations accounts from which
such funds were transferred pursuant to section
IV (a)
OPTION 3
Revise section IV (a) to read as follows (new language
indicated by underscoring) :
(a) Transfer of Funds: The President may transfer to the
Agency for International Development, from unobligated funds
from the appropriations accounts specified in sub-section
(e) below:
(1) Not to exceed $51,230,000 to provide humanitarian
assistance to the Nicaraguan Resistance, to remain
available through February 28, 1990, except that
funds provided by this subsection shall not be
obligated for humanitarian assistance prior to
April 1, 1989;
(2) Such funds as may be necessary to provide
transportation for assistance authorized by
paragraph (1) ;
(3) Not to exceed $12,000,000 for verification
activities to verify compliance with the measures
listed in [Section III] hereof; and
(4) Not to exceed $5,000,000 for the operating
expenses of the Agency for International
Development to meet the necessary administrative
expenses to carry out this title.
All three options will enable us to live up to Secretary Baker's
informal agreement without violating the Impoundment Control Act.
Option 2 is the most explicit, option 3 the least explicit, and
option 1 is somewhere in between. Option 3, however, has the
disadvantage of requiring careful monitoring by accountants and
therefore might draw objections from the Defense Department.
3
3
You should also note that the draft legislation provides that the
funds will be available for obligation through March 31, 1990,
rather than through February 28, 1990 as agreed in the Bipartisan
Accord.
Attachment
Tab A
Draft Contra Aid Legislation
CC: Robert Zoellick
RM
MAR 27 1989
MEMORANDUM
TO:
David A. Colson, L/ARA
Mathew Adler, L/ARA
FROM:
TFHA, Robert Meighan
SUBJECT:
Legislation for the TFHA Phase III Program
Attached is a copy of draft legislation which we worked on with
you last week. Ted Morse told me this morning that he heard
from Dan Pisk that Mr. Aronson would like to develop a simple
one paragraph continuation of the present authorities for the
THA program. That may be difficult to do for such a com-
plicated program. we would suggest the following, in regard to
the attached.
1. The policy, objectives, and measures of democratizations
on the first two pages of the attached could be deleted,
with no harm to our program.
2. Section IV(a)(3) could also be deleted.
3. Section IV(b) could be deleted if A reference to Section
9006 (b) of the present legislation were included in
Section IV(c). It should be noted that if this is done
we would be limited to the same activities that we
carried out under Phase II, without inclusion of the
increased human rights activities, increased training,
and self help development. our office thinks that these
latter activities are very important if we expect to
hold the resistance together for an extended period of
time.
4. Section IV (f) could be deleted.
If our Task Force can be of any assistance in this matter let
us know.
CC: LEG, David Liner
ARA/LPD, Dan Fisk
TFHA:MAd1er:cc:3/27/89: #1312B
3/15 3pm
A Law to Promote the Central American
Peace Process
I. It is the policy of the United States:
(a) to advance peace and democracy in Central America and
to protect American security interests in the region;
(b) to support fully the peace process begun by the
Central American Presidents and embodied in the
Esquipulas Accord of August 7, 1987, the Declaration
of Alajuela of January 16, 1988, and the Tesoro Beach
Communique of February 14, 1989;
(c) to provide the Nicaraguan Resistance with humanitarian
assistance; and
(d) to facilitate the voluntary reintegration of the
Nicaraguan Resistance into civilian life if and when
conditions in Nicaragua permit their safe return with
full restoration of their civil and political rights.
II. It is the objective of the United States:
(a) to reduce the threat of Nicaraguan and Soviet bloc
support for regional destabilization, by having
Nicaragua cease such support and by strengthening the
democracies to resist subversion;
(b) to promote democratization in Nicaragua consistent
with the obligations it has already agreed to in the
O.A.S. and in the Central American peace process, and
through invigoration of the democratic process;
(c) to bring about the withdrawal of Soviet bloc military
personnel from Nicaragua, including guarantees against
their return, and to bring about the termination of
Soviet military assistance to Nicaragua; and
(d) to strengthen throughout Central America civilian
leadership of government institutions, functioning
judicial systems and the rule of law, personal
security and the protection of human rights for all
participants in political systems, and to bring about
conditions of peace and security that will allow
increased economic integration and development that
will be broadly shared by all inhabitants of the
region.
- 2 -
III. In the view of the United States, the following are among
the important measures of democratization in the region:
(a) hold free, fair and honest elections subject to
international monitoring;
(b) repeal laws which allow the government to exercise
arbitrary and capricious authority over its citizens;
(c) provide for and guarantee freedom of speech, the
press, conscience, religion, education and movement;
(d) remove restrictions on the right to organize political
parties;
(e) release all political prisoners under international
supervision and fully restore their political rights;
(f) provide for and implement subject to international
verification full amnesty for all political prisoners
and members of irregular forces;
(g) guarantee the right of trade unions to organize freely
and to work for the economic betterment of their
members;
(h) fully respect habeas corpus, amparo and due process
and allow international inspections of prisons;
(i) terminate state sponsored intimidation or harassment
of individuals because of their political, religious
or economic beliefs, so that they may peacefully
express their views without intimidation, injury or
harassment;
(j) revise and make consistent with democratic standards
the electoral laws, political parties law, media and
censorship laws, and public order and security laws;
(k) give favorable approval to qualified applicants for
licenses for non-governmental radio and television
stations;
(1) separate and maintain the separation of political
parties from military, police, civil service and
judicial institutions; and,
(m) eliminate restrictions on importation or introduction
of foreign funds or materials by religious, human
rights, trade union, media or political organizations.
- 3 -
IV. Humanitarian Assistance:
(a) Transfer of Funds: The President shall transfer to
the Agency for International Development, from unobligated
funds from the appropriations accounts specified in sub-section
(e) below:
(1) $51,230,000 to provide humanitarian assistance to
the Nicaraguan Resistance, to remain available
through March 31, 1990, except that funds
provided by this subsection shall not be
obligated for humanitarian assistance prior to
April 1, 1989;
(2) Such funds as may be necessary to provide
transportation for assistance authorized by
paragraph (1);
(3) $12,000,000 for verification activities to verify
compliance with the measures listed in [Section
III] hereof: and
(4) $5,000,000 for the operating expenses of the
Agency for International Development to meet the
necessary administrative expenses to carry out
this title.
(b) For purposes of this section the term "humanitarian
assistance" means
--
(1)
food, clothing and shelter;
(2)
medical services, medical supplies, and
non-military training for health and
sanitation;
(3)
non-military training of the recipients with
respect to their treatment of civilians and
other armed forces personnel, in accordance
with internationally accepted standards of
human rights, plus monitoring, reporting and
investigating allegations of abuses;
(4)
payment for such items, services and
training;
(5)
replacement batteries for existing
communications equipment;
- 1 -
(6)
vocational training and education programs
to prepare for the reintegration of members
of the Nicaraguan Resistance into civilian
life in Nicaragua; and
(7)
self-help development assistance.
(c) The authorities, conditions, prohibitions, and
requirements contained in Section 9004(b), 9005, 9007, 9012,
and 9014 (except 9014 (b) (2) ) of Title IX of the Department of
Defense Appropriations Act, 1989 are hereby extended through
March 31, 1990.
(d) Of the funds made available by subsection (a)
above, the President is authorized to use any amount
deemed appropriate to facilitate reintegration of members
of the Nicaraguan Resistance into civilian life in
Nicaragua consistent with the Central American peace
process.
(e) The appropriation accounts referred to in
sub-section (a) are those referred to in Section 9011 of
Title IX of the Department of Defense Appropriations Act,
1989.
(f) Should the President notify the Congress that
additional funds are necessary to support the policy of
the United States in Central America, the Congress shall
provide for such expedited procedures as may be
appropriate to consider such request.
2837E
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
09. Memo
From C. Boyden Gray to POTUS
6/23/89
P
Re: Campaign Finance Reform Package (16 pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff to the President, Office of the
Open on Expiration of PR
Series:
Sununu, John, Files
(Document Follows)
Subseries:
White House Offices File
WHORM Cat.:
By H (NLGB) on 12/12/07
File Location:
Counsel (1989)
Date Closed:
11/30/2004
OA/ID Number:
29177-008
FOIA/SYS Case #:
1998-0004-F
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy |(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
THE WHITE HOUSE
WASHINGTON
June 23, 1989
MEMORANDUM FOR THE PRESIDENT
FROM:
C. BOYDEN GRAY 8th
COUNSEL TO THE PRESIDENT
WHITE HOUSE CAMPAIGN FINANCE REFORM WORKING GROUP
SUBJECT:
CAMPAIGN FINANCE REFORM PACKAGE
ACTION-FORCING EVENT
In your April 12 address to the American Society of Newspaper
Editors, you announced that you had instructed your staff to
perform a comprehensive review of campaign finance reform. This
memorandum is a product of such a review by a White House working
group which included representatives from the Offices of Counsel
to the President, Political Affairs, Policy Development,
Legislative Affairs, and the Republican National Committee (the
"Working Group"). The Working Group has met periodically over
the past two months, both on its own to consider various
proposals, and with representatives from the Senate, the House,
corporate and trade association PACs, ideological groups, and
Republican political professionals.
The meetings with the various constituency groups produced a
consensus from Republican partisans that the President's package
should be an innovative measure which breaks through the
Republican "fat cat" stereotype and takes cutting edge positions
on specific issues for which there may not yet be a consensus on
the Hill because of the self-interests of various Members.
Our starting point for the proposals outlined below was the four
points articulated in your April 12 speech. First, you announced
that the Administration's ethics bill which went to the Hill that
day would include a prohibition against converting congressional
campaign funds to personal or office use. Second, you stressed
the need to strengthen political parties. Third, you stated
that, "I believe we should eliminate contributions to candidates
by political action committees, and I'll be consulting with
-2-
Congress about that." In that context, you noted that, "PACs
weaken the parties, restrain competition, and deaden the
political debate." Finally, you opposed public financing of
Congressional elections. The Working Group has attempted to
develop a comprehensive campaign finance reform package which is
consistent with your bold proposal on PACs and the general themes
of strengthening parties, increasing competition and fairness in
elections, and curtailing special interests.
Part of the backdrop for these deliberations is the burgeoning
ethics crisis in the House which demonstrates the inherent
dangers of a Congress too long dominated by one party. This
crisis follows the 1988 elections in which 99.2% of the
incumbents in the House who sought re-election were re-elected
under a campaign finance system where 62% of PAC contributions
went to Democrats and 76% went to incumbents. In elections
between incumbent House Democrats and Republican challengers, the
numbers are even more striking: Democrat incumbents received
$54.3 million in PAC contributions compared to the $2.4 million
for Republican challengers.
The Working Group has divided its proposals into four broad
areas: (I) Contribution Limits by PACs, Political Parties and
Individuals; (II) the Incumbency Advantage, including the use of
excess campaign funds, the political advantages of holding
office, and perpetuation of incumbency through redistricting;
(III) Soft Money and the need for full disclosure, and (IV)
Banning Honoraria.
I. CONTRIBUTION LIMITS
A. PACs
1. ANALYSIS
In your April 12 speech, you stated your belief that PAC
contributions to candidates should be eliminated. Under current
law, there are two general categories of PACs: those which are
sponsored by, or affiliated with, corporations, unions and trade
associations, and those which are not sponsored or affiliated,
the so-called "non-connected" or "ideological" PACs. The bulk of
PAC contributions come from corporate, union and trade
association PACs: they accounted for nearly 90% of total PAC
giving in 1988.
Because of freedom of association and freedom of expression
guarantees found in the First Amendment, it may be impossible to
ban all contributions to candidates from non-connected PACs.
Our proposal is to ban corporate, union, and trade association
PACs, which essentially would return the law to its pre-Federal
-3-
Election Campaign Act of 1971 status. In addition, we would
reduce the contribution limit for the remaining non-connected
PACs from $5,000 to $1,000 per candidate per election. (A second
option would be to reduce the limit to $2,500. This is consistent
with some congressional proposals and is preferred by some of the
conservative ideological groups.) This proposal would sharply
reduce overall PAC giving. Using 1988 PAC contribution figures,
the effect of this proposal would have been to eliminate at least
$140 million of the $160 million in PAC contributions.
If PAC contributions were curtailed as outlined above, other
elements of this package become crucial since such a ban has the
potential of: decreasing the role of business interests in the
campaign finance system, thereby increasing the relative
influence of labor unions; encouraging corporations, unions, and
trade associations to "bundle" individual contributions through
agents as a way to circumvent the limitation; and increasing the
number of independent expenditures.
It should be noted that the Working Group does not believe this
package will significantly affect the amount of money being spent
on elections. Instead, the reforms proposed will tend to re-
channel campaign funds away from special economic interest PAC
operatives inside the Beltway, and back to (a) the parties and
(b) direct individual donations (from both union members and
corporate employees).
2. RECOMMENDATIONS
In order to achieve your objectives while creating a sound
overall system for campaign finance, the Working Group recommends
reforms in six specific areas: (a) banning corporate, union and
trade association PACs; (b) prohibiting candidates from having
more than one committee in order to end "leadership PACs"; (c)
tightening rules prohibiting economic special interests from
"bundling" individual contributions; (d) codifying the Beck
Supreme Court decision on union dues; (e) encouraging voter
participation programs by economic special interests; and (f)
increased reporting for independent expenditures.
Because change to one part of the campaign finance system has
consequences for other parts of the system as well, the Working
Group strongly recommends that all six reforms be undertaken as a
uniform package to lessen the risk of unintended consequences.
a) Banning PACs: The Working Group recommends eliminating
corporate, union, and trade association PACs. This would include
prohibiting any union, corporation, or trade association from
using its treasury money to pay for any PAC's administrative
costs or other political activities. It would also abolish any
payroll checkoff contributions to any PAC.
We also recommend that contributions by the remaining non-
connected PACs be reduced from $5,000 to $1,000 per candidate per
election. Another option would be to reduce such contributions
-4-
to $2,500. These non-connected PACs would continue to be allowed
to contribute $15,000 per year to national and $5,000 per year to
state political parties in order to strengthen the political
party structure. Further, the non-connected PACs would be able
to continue spending unlimited amounts of money on such
participatory activities as voter registration programs,
informing members and the public about elections, and conducting
get-out-the-vote activities. These so-called "soft money"
activities would become fully reportable and would provide those
PACs remaining a vehicle to participate meaningfully in the
electoral process.
Pro:
-- Reduces the role of economic special interest
money.
Pro:
--
Increases the role of political parties since the
role of PACs will diminish.
Pro:
--
Equalizes the roles of corporations and union in
elections.
Pro:
--
Takes the high ground on PACs which, in this
ethics climate, is likely to be popular with the
public and press.
Con:
--
Eliminating corporate, union and trade
association PACs may reduce the number of
individiuals currently participating in the
system since many individuals give only to their
company's, union's or industry's PAC.
Con:
--
Danger that cutting off PAC contributions to
candidates will tend to increase independent
expenditures and encourage "bundling" abuse.
Con:
--
May not lead to increased PAC giving to political
parties, because many PACs believe they receive
benefits only by giving directly to candidates.
Con:
--
Retaining non-connected PACs may be viewed as a
loophole; i.e., employees or members of
corporations or labor unions could ban together
to establish "non-connected" PACs with informal
corporate, union, or trade association
sponsorship.
-5-
DECISION -- Banning Corporate, Union, Trade Association PACs
Approve
Approve as Amended
Disapprove
No Action
DECISION -- Reducing Non-Connected PAC Limits
Approve
Option 1 ($1,000)
Option 2 ($2,500)
Approve as Amended
Disapprove
No Action
b) "Leadership PACs": We recommend that any legislation also
prohibit transfers between PACs, limit all candidates to a single
committee, and prohibit candidate's campaign committees from
contributing to other candidate's committees. This would
eliminate "leadership PACs" which allow entrenched incumbents to
spread special interest contributions to other candidates.
Pro:
-- Discourages the proliferation of non-connected
PACs that may otherwise occur if economic special
interest PACs are banned.
Pro:
-- Stops influential congressional leaders from
using economic special interest money to fund
their personal PACs so they can seek favor from
their colleagues.
Pro:
-- Reform initially recommended by the PAC community.
Con:
--
Opposition from those congressional leaders who
have raised and spent significant amounts in
seeking and maintaining positions in the
congressional leadership.
-6-
DECISION -- Leadership PACs
Approve
Approve as Amended
Disapprove
No Action
c) Bundling: Bundling is the practice where an organization (or
its officials) solicits many contributions from its employees or
members at a central location, bundles them together and sends
them to the candidate without affecting the central
organization's contribution limits. We recommend tightening the
existing laws prohibiting bundling, except that such restrictions
would not apply to political parties.
Pro: -- Necessary to discourage economic special interests
from doing what their PACs did by instead having
corporate executives and union and trade
association officials pressure their colleagues
for individual contributions.
Con: --
It may be impossible to legislate away this
practice, so that money from economic self-
interests will still play a major role despite
PAC reform.
DECISION -- Bundling
Approve
Approve as Amended
Disapprove
No Action
d) Beck Codification: The U.S. Supreme Court decision in Beck
should be codified so that a union member can stop his or her
mandatory dues from being used for political activities he or she
does not support. (This proposal received virtually unanimous
support from all individuals talked to by the Working Group.)
Pro:
-- Levels the playing field between union and
corporate interests.
-7-
Pro:
--
Unanimously supported by all outside groups
contacted by the Working Group.
Con:
--
Ensures strong opposition from organized labor
because of Beck codification (in conjunction with
the prohibition on labor treasury money for PAC
administrative costs).
DECISION
--
Beck Codification
Approve
Approve as Amended
Disapprove
No Action
e) Voter Participation Programs: Although corporations, unions,
and trade associations would not be permitted to sponsor PACs,
these entities would continue to be permitted to participate in
elections through voter registration programs, get-out-the-vote
activities and advocacy communications to their members.
However, this proposal would require full disclosure of all
monies spent for such activities. Under current law, such
activities are frequently not disclosed, resulting in massive
amounts of political activity and spending outside the scrutiny
of the public and the media.
Pro:
--
Encourages voter participation activities by
corporations, unions and trade associations,
which could lead to increased turnout.
Pro:
-- Increases disclosure of activities which affect
elections.
Con:
--
Full reporting will add to the regulatory burden
on corporations and labor unions.
DECISION -- Voter Participation Programs
Approve
Approve as Amended
Disapprove
No Action
-8-
(f) Independent Expenditures: These expenditures could well
increase if economic special interest contributions to candidates
are barred and other PAC contributions reduced. We recommend
reporting requirements for any group conducting independent
expenditures be increased. Specifically, such groups would be
required to include additional notice throughout an ad
identifying the person or organization funding it. The Supreme
Court has ruled that independent expenditures are
constitutionally protected, so an airtight ban is impossible.
This reform would make the independent non-authorized nature of
such expenditures more public.
Pro:
--
Provides more public notice of independent
expenditures, which are often misleading and
often do not clearly include information on who
is sponsoring them.
Pro:
--
Restrictions on independent expenditures enjoy
bi-partisan support in Congress.
Con:
--
Restrictions on independent expenditures may have
a chilling effect on legitimate political debate.
DECISION -- Independent Expenditures
Approve
Approve as Amended
Disapprove
No Action
B. POLITICAL PARTIES
1. ANALYSIS
The April 12 ethics speech stressed that political parties should
be strengthened. As discussed above, proposed PAC limitations
alone may allow the political parties to regain influence.
Another way to strengthen political parties is to increase party
spending limits through increased coordinated expenditures. This
would also allow candidates to spend less time fundraising since
a larger amount of their funds could come from one set source.
Candidates would not be tainted by "special interest" money
because any such funds would come from a political party, and
candidates and contributors would have no way of knowing
precisely which special interest's money were going to which
campaign.
-9-
2. RECOMMENDATIONS
The Working Group recommends increasing the coordinated expendi-
ture limits the parties may spend on behalf of congressional
candidates to 5¢ times the voting age population of the state,
adjusted for inflation (it is now 2¢ times the voting age
population, adjusted for inflation). This recommendation would
provide additional funds for the political party committees to
aid in their assuming a larger role in the process.
Pro:
-- Political parties would be strengthened because
they will play a larger role in funding
candidates.
Pro:
-- Candidates may spend less time fundraising
if the parties can contribute more.
Pro:
-- Individual candidates would not be tainted by
taking money from any one special interest since
funds will be provided by the parties.
Con:
-- To the extent the RNC is perceived as having an
upper hand in fundraising over the Democrats,
you could open yourself to criticism that these
recommendations simply represent political self-
interest.
3. DECISION
Approve
Approve as Amended
Disapprove
No Action
II. REFORM THE INCUMBENCY ADVANTAGE
A. EXCESS CAMPAIGN FUNDS
1. ANALYSIS
Under the current law, incumbents amass huge war chests that
scare off challengers in election after election, thereby
insulating incumbents from competitive elections. These campaign
treasuries are also put to other uses. In the House, the
-10-
"grandfather clause" permits the 190 House Members in office on
January 8, 1980 to convert their excess funds to personal use
upon retirement. In the Senate, the Rules ban personal use of
campaign funds, but permit the use of such funds to supplement
official accounts.
As noted above, the ethics legislation sent to the Hill on April
12 included a provision prohibiting, on the effective date of the
legislation, the conversion of excess campaign funds to personal
or office use. This would stop House Members from converting
excess campaign funds to personal use. It would also prohibit
Senators from supplementing their official accounts with campaign
funds. Republican and Democratic Senators now do this by direct
disbursement of campaign funds to cover items that can also be
paid for with official funds. Republican Senators also receive
funds from the National Republican Senatorial Committee through
the COMBO program account for the same purposes.
The issue has arisen as to whether we should go beyond the
April 12 proposal and ban all uses for excess campaign funds.
2. RECOMMENDATIONS
The Working Group recommends zeroing out campaign treasuries
after each election. This goes beyond the ethics package
provisions, but is certainly not inconsistent with the prior
proposal or with the theme of increasing competition in
elections. All excess campaign funds should be given to:
national and state party committees; the National Debt Retirement
Account of the United States Treasury; or all campaign
contributors as pro-rated refunds. The proposal would require
that all campaign accounts be zeroed out by January 31 following
the election.
Pro:
-- Eliminating campaign war chests will result in
more competitive elections and higher turnover.
Con:
--
Zeroing out is likely to promote early and more
intensive fundraising by incumbents.
Con:
-- Many Members of Congress feel strongly that this
kind of "insurance fund" is necessary and
appropriate.
-11-
DECISION
Approve
Approve as Amended
Disapprove
No Action
B. FUNDRAISING RESTRICTIONS
1. Analysis
In the interest of limiting the influence of economic special
interests and decreasing the amount of time Members spend
fundraising while in Washington, it has been proposed that
Members of Congress and their staffs and agents be permitted to
be involved personally in raising campaign funds only on calendar
days when Congress is not in session. The Working Group has not
reached a consensus recommendation on this option.
Pro: -- Makes it more difficult to raise money in
Washington, thereby furthering the objective of
shifting political fundraising and decisions as
to who receives contributions beyond the Beltway.
Con: -- Will be viewed as a hinderance and inconvenience
by many Members, who will seek ways around it.
2. DECISION
Approve
Approve as Amended
Disapprove
No Action
C. ADVANTAGES OF HOLDING OFFICE
1. ANALYSIS
The incumbent re-election rate in the House of Representatives is
over 99%; the re-election rate in the Senate is over 75%. As is
frequently noted, there is more turnover in the Soviet Politburo
-12-
than the U. S. Congress. Thirty-five years of Democratic rule in
the House have contributed to the ethical quagmire in which the
House is currently immersed.
This one-party domination is perpetuated by protections built in
to the current system. The root of the problem is that
incumbents -- especially in the House -- have used the system to
shield themselves from the voters. The aim of this campaign
reform package is to restore competitive elections. Accordingly,
the package takes aim at the perquisites of office and the
self-perpetuation of incumbents.
2. RECOMMENDATIONS
In order to promote fair and competitive elections and reform a
scandal-tainted institution, reform should come in the areas of
reduced Franking and redistricting.
a) The Frank: Limit the use of the Frank by putting a cap on
the total amount available so that Members would be limited to
one postal patron a year, mailed only in December, January, or
February. (Option 1) This would allow a regular newsletter or
survey, but would restrict campaigning at public expense.
Another option is to ban Franked mass mailings of over 500 pieces
so that individually addressed computer-generated letters to all
residents of a District or State could not be used. (Option 2) A
more drastic alternative would ban unsolicited Franked mail.
(Option 3). Under any of the options, the Secretary of the
Senate and Clerk of the House should be required to report on a
quarterly basis the amounts spent by each Member. The reports
would be filed within 30 days of the end of the quarter. The
House Campaign Reform Task Force recommends that you adopt Option
3.
Pro:
--- Any of these options will result in budget
savings. The use of the Frank now costs the
taxpayers over $200 million a year.
Pro:
-- The Frank is abused by incumbents at the
taxpayers' expense.
Pro:
-- There is no way for a challenger/candidate
to respond to an incumbent's ability to use
the Frank.
Con:
-- Reduction of the Frank may reduce a
Representative's ability to communicate
with his constituents.
-13-
DECISION -- The Frank
Approve
Option 1 (1 annual postal patron)
Option 2 (ban mailings over 500 pieces)
Option 3 (ban unsolicited Franked mail)
Approve as Amended
Disapprove
No Action
b) Redistricting: No single factor is more basic to reforming
the built-in advantages of incumbency than ensuring a fair
redistricting. This can be achieved legislatively by drafting
neutral criteria so that districts are drawn according to
non-partisan factors based on fairness, rather than partisan
self-perpetuation. While redistricting is often overlooked as a
part of the campaign finance reform debate, a gross gerrymander
insulates incumbents from the voters more than any other single
factor. For example, the California gerrymander of the 1980's
has led to only one seat changing parties in the 180
Congressional elections that have been held this decade.
Vast technological advances heighten, as never before, the chance
of similar gerrymanders in the 1991 redistricting. A
Presidential proposal endorsing non-partisan criteria based upon
the preservation of communities and the compactness of districts
is the single most important step Republicans can take to
heighten public awareness of this crucial issue. This can be
done by: 1) promulgating criteria for fair redistricting in
federal elections, such as requiring district lines to follow
established community boundaries and standards for compactness,
and 2) emphasizing that Congressional and legislative districts
must comply with the Voting Rights Act.
Pro:
--
Will heighten the awareness of this top-
priority issue.
Pro:
-- This is a "good government" proposal which
will be widely supported.
Pro:
--
It allows the President to show strong
support for the provisions of the Voting
Rights Act.
-14-
Con:
--
Redistricting is not usually seen as part
of campaign finance reform so there may
be skepticism as to motives.
Con:
--
Democrats will strongly oppose any fair
districting criteria since they hold most
of the political cards and see neutral
criteria as an attack on their political
power base.
DECISION -- Redistricting
Approve
Approve as Amended
Disapprove
No Action
III. SOFT MONEY
1. ANALYSIS
The basic premise behind the campaign finance laws is full
disclosure. However, a significant portion of the monies spent
in American elections today is not disclosed. Republicans have
always argued for full disclosure, and the President can
demonstrate this commitment again in this package.
Full disclosure should aim at two areas. First is the
well-publicized soft money fundraising in the Presidential
campaign. The RNC has already voluntarily publicly disclosed all
of its Team 100 and other soft money contributions. The
Democrats have not been so forthcoming. Public pressure is such
that full disclosure of soft money is inevitable -- and we should
take the initiative on this.
The focus on presidential political party soft money is only part
of the story, however. The same principles behind party soft
money disclosure should apply to the undisclosed political
activity of labor unions and tax-exempt groups (an estimated $20
million was spent by unions in the 1984 presidential race on
behalf of Democratic candidates).
Unless the disclosure of soft money by the political parties and
corporations, unions and trade associations is even-handed, any
bill will be subject to presidential veto.
-15-
2. RECOMMENDATIONS
First, there must be the full disclosure of all soft money
contributions and expenditures by political party committees.
Second (as discussed above in I. A. 2, P. 2), all labor unions,
corporations and trade associations must disclose fully all money
spent to influence a federal election, including voter
registration and get-out-the-vote activities, as well as any
communications which advocate the election or defeat of any
federal candidate.
Pro:
--
Full disclosure is a good government proposal
that will be popular in the press and among the
public.
Pro:
--
The Democrats and their allies abuse the
current soft money rules far more than
Republicans.
Con:
--
The unions will strongly oppose the disclosure
of their soft money activities.
Con:
--
Some Republican donors may complain at having
their contributions made public.
3. DECISION
Approve
Approve as Amended
Disapprove
No Action
IV. HONORARIA
1. ANALYSIS
The Working Group recommends that you consider a ban on
honoraria. Your legislative ethics proposal did not include a
ban on honoraria. Your April 12 speech did include a statement
that you believe honoraria for Members of Congress should be
banned. You also stated that you believe Members of Congress
should receive a pay raise and that you would not "make a formal
proposal to Congress until after I consult with the leaders of
Congress on the issue of Congressional pay.
As you will recall, the Administration was criticized in certain
quarters for not including honoraria in your April 12 ethics
legislation. The Working Group believes that now is the right
time and that this campaign finance reform package is the right
-16-
vehicle to propose such a ban on honoraria. Recent events on the
Hill make such a proposal particularly timely. We do not
recommend that a pay raise be included in the proposed
legislation, although the Working Group recommends that you link
them in your speech.
Should you decide to propose action on the honoraria issue, the
two principal options which have emerged: (1) the immediate
banning of honoraria, and (2) a phased-in approach, whereby the
percentage of a Member's salary which may be accepted as
honoraria is reduced over time. Currently, House Members may
retain honoraria fees in an amount equal to 30% of their
salaries, while Senators may accept 40% of their salaries in such
fees.
2. RECOMMENDATIONS
The Working Group recommends that the legislation include an
outright ban on honoraria, effective upon the date of enactment.
Pro:
--
Takes a bold and popular stand on an issue which
is currently in the limelight.
Con:
:
Will be resented by some Members of Congress,
especially if it is not coupled with a pay
increase. Most Members of Congress with whom we
consulted recommend that honoraria not be
included in the campaign finance package.
3. DECISION -- Ban Honoraria
Approve
Option 1 (immediate ban)
Option 2 (reduced over time)
Approve as Amended
Disapprove
No Action
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
10. Memo
From James Turner to C. Boyden Gray
6/26/89
PS
Re: Recent Supreme Court Decisions Involving Civil Rights
Issues (8 pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff to the President, Office of the
Series:
Sununu, John, Files
Open on Expiration of PRA
Subseries:
White House Offices File
(Document Follows)
WHORM Cat.:
By H (NLGB) on 5/12/05
File Location:
Counsel (1989)
Date Closed:
11/30/2004
OA/ID Number:
29177-008
FOIA/SYS Case #:
1998-0004-F
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
U.S. Department of Justice
Civil Rights Division
Office of the Assistant Attorney General
Washington, D.C. 20530
June 26, 1989
MEMORANDUM FOR C. BOYDEN GRAY
COUNSEL TO THE PRESIDENT
Re: Recent Supreme Court Decisions
Involving Civil Rights Issues
Several recent Supreme Court decisions involving civil
rights issues have received widespread public attention: City of
Richmond V. J. A. Croson Co., No. 87-998 (January 23, 1989) ;
Price Waterhouse V. Hopkins, No. 87-1167 (May 1, 1989) ; Wards
Cove Packing Co. V. Atonio, No. 87-1387 (June 5, 1989) ; Martin V.
Wilks, No. 87-1614 (June 12, 1989) ; Lorance V. A.T. & T.
Technologies, Inc., No. 87-1428 (June 12, 1989) ; Patterson V.
McLean Credit Union, No. 87-107 (June 15, 1989) ; Independent
Federation of Flight Attendants V. Zipes, No. 88-608 (June 22,
1989) ; and Jett V. Dallas Independent School District, No. 87-
2084 (June 22, 1989). You have asked for the views of the
Department of Justice on whether these cases were correctly
decided and what effect these cases will have on civil rights
enforcement. We believe that the cases were each solidly based
in the law and are unlikely to have undesirable policy results;
indeed, in large part the Court ruled precisely as this
Department had urged it to do. The cases represent narrow
adjustments by the Court designed to achieve a fairer application
of the civil rights laws. The cases appear to leave intact all
the necessary means for eliminating discrimination and protecting
civil rights. While we will be monitoring the future
implementation of these cases, we do not anticipate that they
will have a dramatic effect on current enforcement practices.
Under these circumstances, we see no present need for remedial
legislation.
Our discussion will focus primarily on the four cases that
are the most likely to prompt calls for new legislation: Croson,
Atonio, Martin, and Patterson. The other cases will be more
summarily discussed below.
A. The Most Likely Cases to Prompt Calls for Legislation
1. City of Richmond V. J.A. Croson Co. Croson involved the
legality under the Equal Protection Clause of racial set-asides
for city construction contracts. The Court held first that all
racial classifications will receive strict scrutiny under the
Constitution and will be permitted only if they serve a
compelling governmental interest. See slip op. at 30; concurring
opinion at 1 (Scalia, J.). Second, the Court ruled that racial
set-asides in government contracting are permissible only upon a
clear showing of discrimination in the industry involved in the
affected locale; it made clear that such programs may not be used
to remedy general claims of societal discrimination. Id. at 29.
In so holding, the Court accepted the position urged by this
Department in its brief in the case. See Brief for the United
States as Amicus Curiae Supporting Appellee at 8-24, City of
Richmond V. J.A. Croson Co.,
U.S.
(1989) (No. 87-998).
We believe Croson was correctly decided. First, the Court's
decision moves our law away from requiring "rigid racial quotas,
slip op. at 23, and closer to the goal of truly equal opportunity
by imposing strict scrutiny on all racial classifications. In
addition, the Court's decision properly requires a specific
showing of discrimination in the affected industry that will be
remedied by the set-aside program. This rule fairly prohibits
the favoritism inherent in set-aside programs that are not
justified by discrimination in the industry, while forcing local
governments more effectively to target industries where there is
discrimination that needs to be remedied.
We do not believe that Croson will undermine the
availability of remedies for widespread discrimination. As the
Court noted, Congress still retains broad power under section 5
of the Fourteenth Amendment to redress the effects of society-
wide discrimination, see id. at 15; Croson does not affect that
power. As a practical matter, however, Croson should result in
municipal set-aside programs that are more carefully tailored to
remedy identified instances of discrimination. The case does not
prohibit such programs or similar remedies, and indeed, it need
not result in fewer truly remedial programs being offered. It
should, however, result in programs that more effectively achieve
their goal of remedying discrimination. We believe such results
would be desirable and consistent with the policy reasons behind
the position we took in our amicus brief before the Court.
Because Croson presented an Equal Protection claim under the
Fourteenth Amendment, it could not be overturned directly by
legislation.
2. Wards Cove Packing Co. V. Atonio. In Atonio, the Court
sought to ensure that certain types of statistical data would not
be misused in a way that forced non-discriminatory employers to
adopt strict racial quotas. The case involved a Title VII claim
by cannery workers that there was a "racial stratification" of
their workforce, because skilled jobs were held primarily by
white workers, while unskilled jobs were held primarily by non-
white workers. First, the Court reaffirmed that a prima facie
case of discrimination can be made through statistical evidence,
- 2 -
but it held that the statistics must reflect discrimination based
on racial composition in the relevant qualified labor market.
Slip op. at 6. Second, the Court held that to show a prima facie
case, the plaintiff must identify a particular employment
practice that caused the disparate impact. Id. at 12-13. Third,
the Court ruled that the employer may provide evidence of a
business justification for the business practice to rebut the
plaintiff's prima facie case. Id. at 15. Fourth, the Court
ruled that the plaintiff may still prevail over evidence of a
business justification by demonstrating that alternative
procedures could have satisfied the same business need without
causing the disparate impact. Id. at 16-17. Finally, the Court
ruled that the burden of persuasion always remains on the
employee. Id. at 15. This Department recommended that the Court
reach these results in this case. See Brief for the United
States as Amicus Curiae Supporting Petitioners at 16-29, Wards
Cove Packing Co. V. Atonio,
U.S.
(1989) (No. 87-1387).
Significantly, Atonio reaffirms the established principle
that a plaintiff still can establish a prima facie case of
disparate impact by statistical evidence. It properly emphasizes
what has always been the law, that the statistical evidence used
must be relevant to the discrimination complained of. By
requiring that the statistical evidence be linked to a particular
business practice, the Court promotes a fairer application of the
civil rights laws, in that an employer may be held liable only
for discrimination traceable to its own business practices. A
contrary result, as the Court noted, "would almost inexorably
lead to the use of numerical quotas in the workplace, a result
that Congress and th[e] Court have rejected repeatedly in the
past. " Slip op. at 9. A business justification alone will not
defeat the plaintiff's claim; the plaintiff still may prevail by
showing that other practices would satisfy the business need
without having a discriminatory effect. Finally, although
requiring the plaintiff to bear the burden of persuasion
throughout marks a departure from prior practice in some courts,
it is, as the Court noted, consistent with other Title VII law
and "conforms with the usual method for allocating persuasion and
production burdens in the federal courts." Id. at 15-16. Most
importantly, the rule will not preclude relief in meritorious
Title VII cases.
In practice, Atonio will enable employers to adopt race- and
gender-neutral business practices for selecting personnel with
less reason to fear that discrimination charges will be lodged
against them simply because of differential impacts that are not
fairly traceable to their practices. Meritorious suits will not
be precluded. On balance, Atonio represents a narrow adjustment
to prior enforcement practices that resulted in substantial
unfairness to some employers. Some Congressmen may propose
legislation to shift the burden of persuasion to the employer, to
require the employer to show business necessity for targeted
- 3 -
hiring practices, or otherwise to counteract the anticipated
effects of Atonio. We believe, however, that such legislation
could reopen the door to laws that would require employers to
engage in reverse discrimination. Moreover, we believe such
legislation is unnecessary because we do not think that the case
will undermine the full and fair enforcement of the civil rights
laws. We will be monitoring the case's application to determine
its actual effects, but we do not believe immediate legislation
to overturn Atonio is either necessary or appropriate.
3. Martin V. Wilks. Martin involved a suit by white
firefighters to overturn a consent decree requiring race-
conscious promotion decisions. Based on arguments presented by
this Department, the Court held that the plaintiffs could attack
the decree because they had not been joined as parties either to
the decree or to the suit that gave rise to the decree. See
Brief for the United States at 11-30, Martin V. Wilks,
U.S.
(1989) (No. 87-1614).
The Court's decision involves not an interpretation of the
civil rights laws, but simply a neutral application of the
Federal Rules of Civil Procedure requiring joinder of all
interested parties. The joinder principle is rooted in the Due
Process Clause and the fundamental notion of fairness in our
system of justice that everyone is entitled to his day in court.
In practical effect, the decision should encourage a more
effective application of our civil rights laws by requiring
parties to join all persons who could be affected by a suit
charging discrimination. As noted in this Department's brief,
"true voluntary compliance with Title VII requires either that
all interested persons consent to any settlement agreement or
that the agreement negotiated be able to withstand their third-
party challenge." Id. at 11. In addition, the decision should
promote fairness in the application of the civil rights laws by
encouraging parties who enter into consent decrees to consider
fairness to all affected parties. For these reasons, we believe
attempts to overrule Martin legislatively are unnecessary.
4. Patterson V. McLean Credit Union. Patterson involved an
employee's suit under 42 U.S.C. § 1981 for on-the-job racial
harassment, the employer's failure to promote her, and discharge
on account of race. The Court ruled that section 1981 applies
only to discrimination in the making and enforcement of
contracts, not to discrimination during the course of employment
that does not interfere with the right to make or enforce
contract obligations. The Court also clarified the proof
requirements for a section 1981 case, and ruled that the jury
charge on the promotion issue was erroneous because it was not
favorable enough to the employee.
The Court's decision does not represent a significant
curtailment of civil rights remedies. Indeed, as the Court
- 4 -
noted, its ruling "preserve[s] the integrity of Title VII's
procedures without sacrificing any significant coverage of the
civil rights laws." Slip op. at 13. Moreover, the decision
reaffirmed the principle established by Runyon V. McCrary that
section 1981 prohibits racial discrimination in the making and
enforcing of private contracts. Id. at 3. The Court's decision
simply limited section 1981 to the type of claims to which its
plain language applies. See id. at 8. In doing so, the decision
preserves the balance between employer and employee rights
established by Title VII with respect to employment conditions.
Id. at 13 n.4.
The Department's amicus brief was generally in line with the
Court's decision. We did not urge that Runyon be overruled, and
we agreed that the jury instruction on promotions prejudiced
plaintiff's rights. Although we argued that racial harassment
would violate section 1981 in some circumstances, we also urged a
construction of that statute consistent with its language and
history that was narrower than plaintiff's suggested
cosntruction.
As a practical matter, Patterson will encourage employees to
bring most employment disputes within the framework established
by Congress under Title VII. We believe this is a desirable
result. Congress carefully balanced employee and employer rights
in the remedial framework it established in that statute. We
believe it has worked well and that it should be the principal
means of ensuring nondiscrimination in employment. For this
reason, and because there has been no significant curtailment of
civil rights remedies, we see no reason for legislation to
overturn Patterson at this time.
B. Other Cases Recently Decided
1. Price Waterhouse V. Hopkins. In Hopkins, a woman who
was not proposed for partnership by her accounting firm sued the
firm for sex discrimination under Title VII. A plurality of the
Court ruled that when a plaintiff proves that sex played a part
in an employment decision, the employer may avoid liability by
proving by a preponderance of the evidence that it would have
made the same decision even if the plaintiff's gender had not
been taken into account. Slip op. at 12, 22. In so ruling, the
Court rejected both (i) the holding of the Court below that the
employer's proof must be by clear and convincing evidence and
(ii) the position urged by this Department that would have left
the burden of persuasion with the employee, but permitted the
employer to limit the plaintiff's remedy by proving the employer
would have reached the same decision absent an illegal cause.
See Brief for the United States as Amicus Curiae at 19-24, Price
Waterhouse V. Hopkins,
U.S.
(1989) (No. 87-1167).
- 5 -
The result reached in Hopkins is considerably more
permissive than this Department advocated, and indicates that a
majority of the Court is not blindly accepting of the
Department's views, but is engaged in a genuine effort to balance
the rights of all parties in the often technical areas of civil
rights enforcement. We think it unlikely that there will be a
strong move toward legislation to overturn the result in this
case.
2. Lorance V. A.T. & T. Technologies, Inc. Lorance
involved a Title VII claim by female employees challenging a
seniority system they charged was motivated by an intent to
discriminate against women. Although the system was facially
neutral and neutrally applied, the plaintiffs claimed that the
employer had used it intentionally to alter their contract
rights. The Court ruled that the claim was barred by the statute
of limitations. It held that with respect to a program that is
facially neutral and neutrally applied, the statute of
limitations begins to run when the program is adopted. Slip op.
at 11.
Although the Court adopted a more restrictive view of the
statute of limitations than this Department had urged, see Brief
for the United States and the Equal Employment Opportunity
Commission as Amici Curiae Supporting Petitioners at 9-13,
Lorance V. A.T. & T. Technologies, Inc.,
U.S.
(1989) (No.
87-1428), we believe the decision is reasonable and that
legislation to overrule it would be premature until its practical
impact can be evaluated. The Court reasoned that its rule would
promote fair and efficient enforcement of the civil rights laws
by encouraging plaintiffs promptly to bring legitimate claims
that facially neutral programs are discriminatory. As the Court
also noted, a contrary result would permit the disruption, years
after the program was adopted, of "those valid reliance interests
that [Title VII] was meant to protect." Id. at 12.
3. Independent Federation of Flight Attendants V. Zipes.
In Zipes, a class of female flight attendants who had raised a
complex Title VII claim sought attorneys' fees from the flight
attendants' union, who intervened on behalf of incumbent flight
attendants after the plaintiffs had reached a settlement
agreement with the company. After the court rejected the
intervenor's claim, the plaintiff flight attendants sought
attorneys' fees from the intervenor. The Court ruled that Title
VII does not require that attorneys' fees be awarded to the
plaintiff against a losing intervenor, but that fees may be
awarded against such a party only on the same terms as they may
be awarded against a losing Title VII plaintiff: when the
intervenor's action was frivolous, unreasonable, or without
foundation. Slip op. at 7.
- 6 -
The Court closely followed the approach this Department and
the EEOC had urged in our amicus brief, and we believe Zipes was
correctly decided. As the Court noted, it would vindicate
neither Title VII's purpose to deter employment discrimination
nor the national policy against wrongful discrimination to assess
fees against blameless intervenors who have not been found to
violate anyone's civil rights. Id. at 7-8. Moreover, giving
plaintiffs a one-way fee advantage over innocent intervenors
would foster piecemeal litigation of complex civil rights cases
by encouraging interested parties to await judgment and mount a
collateral attack against remedial schemes. Id. at 10. These
policy reasons underlay this Department's brief urging the Court
to reach the result it did. See Brief for the United States and
the Equal Employment Opportunity Commission as Amici Curiae
Supporting Petitioner at 17-20, Independent Federation of Flight
Attendants V. Zipes,
U.S.
(1989) (No. 88-608). We also
argued that a contrary decision would result in attorneys fees
often being awarded against minority litigants in multiparty
civil rights suits. We thus believe any legislation to overturn
Zipes would be unnecessary and inappropriate.
4. Jett V. Dallas Independent School District. Jett
involved a white male teacher who sued the principal and the
local school district under section 1981 for racial
discrimination after he was relieved of his coaching duties and
transferred to another school. The Court assumed, without
deciding, that the plaintiff's section 1981 rights had been
violated, but it ruled that a municipality may not be held liable
for its employee's violation of section 1981 on a respondeat
superior theory. Rather, the Court ruled that section 1983 is
the exclusive remedy for such claims. Slip op. at 29-30. The
Court concluded that to prevail on his claim for damages against
the school district, the plaintiff must show that the violation
of his section 1981 rights was caused by a custom or policy of
the municipality. Id. at 32.
This is the only one of the cases discussed in which the
Department did not file a brief, and so our views on it
necessarily are more tentative. As with Patterson, the Court's
decision does not appear to curtail significantly any civil
rights remedies, but instead simply limits the rights that may be
vindicated under section 1981 to those that Congress intended to
be reached. We do not understand there to be any discriminatory
action shielded from suit by the Court's decision; to the
contrary, the decision seems based on the premise that section
1981 does not cover certain actions because section 1983 was
intended to cover them instead. And, of course, as with
Patterson, Congress's carefully balanced Title VII remedial
scheme is available. Therefore, we again see no reason for
legislation at this time to overturn the Court's decision.
- 7 -
Conclusion
As discussed above, we believe that these cases have a solid
basis under established principles of law and are unlikely to
lead to disruptive policy results. We do not believe they
represent a pendulum swing away from vigorous enforcement of the
civil rights laws; rather, in large part they represent a fine-
tuning of some enforcement practices that were greatly in need of
adjustment. The fundamental civil rights protections established
by Congress and the Constitution have not been eliminated;
indeed, they have been directly reaffirmed. In particular, these
decisions will have the beneficial effect of moving the
enforcement of the civil rights laws away from quotas and other
race-conscious employment practices.
This Department will continue to pursue the conscientious
and vigorous enforcement of our civil rights laws. In addition,
it will monitor the practical effects of these cases for
unanticipated results. In large part, however, these decisions
have implemented the views we have urged upon the Court in our
briefs and oral arguments on these cases, which we believe make
both good law and good policy. For these reasons, we believe
that legislation at this time to overturn any of these decisions
is both unnecessary and inappropriate.
Acting Assistant Attorney General
Civil Rights Division
- 8 -
Withdrawal/Redaction Sheet
(George Bush Library)
Document No.
Subject/Title of Document
Date
Restriction
Class.
and Type
11. Memo
From C. Boyden Gray to John Sununu
6/23/89
P-5
Re: WH Response to Supreme Court Decision in Webster V.
Reproductive Health Services (12 pp.)
Collection:
Record Group:
Bush Presidential Records
Office:
Chief of Staff to the President, Office of the
Open on Expiration of PRA
Series:
Sununu, John, Files
(Document Follows)
Subseries:
White House Offices File
By H (NLGB) on 12/12/07
WHORM Cat.:
File Location:
Counsel (1989)
Date Closed:
11/30/2004
OA/ID Number:
29177-008
FOIA/SYS Case #:
1998-0004-F
Appeal Case #:
Re-review Case #:
2005-0426-S
Appeal Disposition:
P-2/P-5 Review Case #:
Disposition Date:
AR Case #:
MR Case #:
AR Disposition:
MR Disposition:
AR Disposition Date:
MR Disposition Date:
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P-1 National Security Classified Information [(a)(1) of the PRA]
(b)(1) National security classified information [(b)(1) of the FOIA]
P-2 Relating to the appointment to Federal office [(a)(2) of the PRA]
(b)(2) Release would disclose internal personnel rules and practices of an
P-3 Release would violate a Federal statute [(a)(3) of the PRA]
agency [(b)(2) of the FOIA]
P-4 Release would disclose trade secrets or confidential commercial or
(b)(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
(b)(4) Release would disclose trade secrets or confidential or financial
P-5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRA]
(b)(6) Release would constitute a clearly unwarranted invasion of
P-6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
(b)(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of
(b)(8) Release would disclose information concerning the regulation of
gift.
financial institutions [(b)(8) of the FOIA]
(b)(9) Release would disclose geological or geophysical information
PRM. Removed as a personal record misfile.
THE WHITE HOUSE
WASHINGTON
June 23, 1989
MEMORANDUM FOR THE PRESIDENT
THROUGH:
GOVERNOR JOHN H. SUNUNU
FROM:
C. BOYDEN GRAY RAYCRN
COUNSEL TO THE PRESIDENT
WILLIAM L. ROPER MRIBY
DEPUTY ASSISTANT TO THE PRESIDENT FOR DOMESTIC
POLICY AND DIRECTOR, OFFICE OF POLICY
DEVELOPMENT
SUBJECT:
White House Response to Supreme Court Decision in
Webster V. Reproductive Health Services
I. ACTION-FORCING EVENT
The Supreme Court has pending before it in the case of Webster V.
Reproductive Health Services the question of the future
constitutional status of abortion. It could decide this case as
early as Monday, June 26, although it may also wait until
Thursday, June 29 or Friday, June 30. This past Wednesday, our
offices convened a meeting to discuss possible Administration
responses. This memorandum grows out of that meeting.
II. BACKGROUND
The Supreme Court is expected to finish its term no later than
Friday, June 30. That means that within the next week, it is
likely to hand down its decision in Webster V. Reproductive
Health Services. That is the case in which the Court has before
it the question whether to overrule, substantially cut back on,
or leave standing its 1973 decision in Roe V. Wade, in which it
discovered that the Constitution protects the right to abortion.
Two days after the election, the Department of Justice filed a
brief in the Webster case urging that Roe be overruled. It
orally argued that position in Court this April. Regardless of
how the Court rules, the Administration's response will be
carefully watched.
2
Traditionally, the White House has not tried to respond
immediately to Supreme Court decisions. There are sound reasons
for this practice. There are sufficient variations in the way
the Court can decide any case that it is almost impossible to
prepare a response in advance that would anticipate all the
possibilities, and an off the cuff response arrived at without
careful study of the opinion in a case and its ramifications for
future cases could be disastrous.
On the other hand, the Administration's position in this case has
been extremely important to a significant part of your
constituency. Because of that, enough people could read sinister
motives into the lack of an immediate response to a decision in
this case that an exception might be warranted. Were we to
attempt to do so on the spot, however, these issues are
sufficiently emotionally charged that any misstep could be
disastrous. For all these reasons, we thought it might be useful
to set out some fairly detailed options for you to consider in
responding to various possible scenarios. If you feel
comfortable making some of these decisions in advance, that might
provide sufficient guidance to allow a response other than "We're
studying the decision."
Accordingly, this memorandum sets out possible Court decisions
and options for how to respond. One thing to remember while
going through this memorandum is that the Court has a choice
between overruling Roe directly or undermining it indirectly over
a period of years.
III. Possible Court Decisions
The Missouri statute at issue places several different kinds of
restrictions on the performance of abortions. Each of these
restrictions is being challenged as a violation of the right
protected by Roe V. Wade.
The Supreme Court can basically do one of four things.
O First, it can overrule Roe and find that there is no
constitutional right to abortion. If it takes that route,
it would then uphold the Missouri statute (except possibly
the provisions challenged on other grounds) as within the
State's power to enact, since the Constitution would no
longer be read as an obstacle. This would leave the States
and arguably the Congress a great deal of latitude to pass
restrictions on abortions in the future.
O
Second, it can decline to address the continuing
validity of Roe on the ground that even if Roe places
limitations on the States' power to regulate abortions, this
statute is well within those limitations. That would also
result in upholding the Missouri statute. It would also
3
leave the States and arguably the Congress much freer to
restrict abortions than they are at present, although less
so than under the first scenario.
O
Third, it can address the continuing validity of Roe,
find that it remains valid, but find that some of the
Missouri statute's provisions are nevertheless
constitutional. That could result in upholding the Missouri
statute in whole or in part. As a practical matter, this
outcome might well be very similar to the second scenario.
Nevertheless, anti-abortion groups might not see it as
providing as much additional leeway, thus requiring the
Administration to address whether it will continue to attack
Roe frontally (which might be the better political course)
or chip away at it (which might be the better litigation
strategy).
O
Finally, the Court can reaffirm Roe and invalidate all
of the provisions of the Missouri statute as in conflict
with the constitutional right to abortion. This would
basically leave present law intact.
We should add that although we state that "the Court" can do each
of these things, it is also possible that there will not be five
votes to do any of these things. The most likely scenario of
that sort is some combination of Rehnquist, White, Scalia and
Kennedy voting to overrule Roe, O'Connor voting to leave it
standing but uphold some or all of the Missouri statute, and
Brennan, Marshall, Blackmun and Stevens voting to strike down the
statute.
Any of the first three options is likely to be viewed as a
victory by the anti-abortion groups. Conversely, the pro-
abortion groups will view anything short of option four as a
defeat, although they may not say so publicly about some forms of
option three.
IV. POSSIBLE ADMINISTRATION RESPONSES
The Administration should be ready with an internal decision
regarding how to respond for each of the four scenarios described
above. That decision should encompass both the contents of the
response and the method of giving it.
A. Court Overrules Roe
Option 1: No immediate response ("We're studying the
decision")
Pros:
4
--
The traditional White House and Department of
Justice immediate reaction to Supreme Court
decisions.
--
Avoids placing the Administration at the center of
the firestorm that will inevitably ensue.
Cons:
--
Would be viewed as an abandonment of the
President's campaign commitment to oppose Roe.
--
Would be viewed as backsliding from the
Administration's litigation position.
Option 2: Express delight at the decision, no opinion
on what future policy on abortion should be
"Today's decision is a great step forward for assuring
the protection of the unborn. It is also a welcome
sign of the Court's confidence in the American people's
ability to make decisions themselves through their
legislatures.
"
Pros:
--
Consistent with the President's campaign position
and litigation position.
--
Chooses a side on this emotional issue and
therefore helps gain the strong support of an
important combination of constituencies (anti-
abortion groups, evangelicals) in the Republican
Party.
Cons:
--
Places the Administration closer to the center of
what will surely be an emotional and divisive
debate.
--
The anti-abortion position may become a great deal
more unpopular once it has a chance of being
realized through legislation, rather than simply
being an abstraction. (This is obviously a hard
proposition to test).
5
Option 3: Same as above, but add brief expression of
policy view on abortion.
Add at the end of Option 2 answer: "This offers the
American people an opportunity to move away from
abortion on demand. It does not, in and of itself,
place any restrictions on abortions, but leaves the
States free to place those that they see fit."
Pros:
--
Same advantages as Option 2.
-- Takes a substantive position on the underlying
issue (what kinds of abortions should be illegal)
consistent with the President's prior statements
and with the views of a majority of the American
people.
--- Reassures proponents of abortion that there is a
political battle yet to be fought.
Cons:
-- Same disadvantages as Option 2.
--
Involves the Administration immediately in the
merits of the abortion debate.
DECISION:
Option 1
Option 2
Option 3
Other
6
B. Court Does Not Reach Roe, but Upholds Missouri Statute
(Same answer can be used if less than a majority of the
Court reaches Roe and would overrule it, e.g. four to overrule,
one not to reach Roe, and four to keep it in place, with
additional phrase in brackets at the end.)
Option 1: No response for several days. "We're
studying the opinion"
Pros:
--
There are a lot of different ways the Court could
reach this result. Therefore it is hard to
prepare an immediate response in advance that will
definitely work.
Cons:
--
This would lose an opportunity for the President
to claim credit for this outcome.
-- A lot of people will be very interested in whether
the President remains committed to seeking the
reversal of Roe. It would be best to give an
answer to that question as soon as possible.
Option 2: A response sometime during the day the
opinion is handed down.
"My Administration will be studying the precise
implications of this decision. I can tell you that we
are very pleased that the Court has seen fit to restore
to the people considerable latitude to legislate in
this area, and believe this decision is an appropriate
intermediate step. We will continue to seek the
overruling Roe V. Wade [and are delighted that
Justices indicated a willingness to do so]."
Pros:
-- Would be consistent with the President's campaign
commitments and the Administration's litigation
position.
Cons:
-- Pledge to return to the Roe question might seem
divisive.
7
DECISION:
Option 1
Option 2
Other
8
C. Roe Reaffirmed But Statute Upheld
Option 1: No comment for several days ("We're studying
the decision")
Pros:
-- Because of the different forms opinions reaching
this outcome could take, this may be the only
approach actually available.
-- The answer to the question people will be
interested in, whether the President will continue
to oppose Roe in litigation, will have to depend
in part on how the opinion reads.
Cons:
----
Even if this would ordinarily be true about
litigation decisions, this is such an important
political issue that it is worth taking
significant litigation risks over.
Option 2: A response sometime during the day the
decision is handed down, stating that we are partly
pleased and partly disappointed.
"My Administration is studying the decision. I
can tell you that I am very pleased that the Court
upheld the Missouri statute, and is prepared to
interpret Roe to allow state restrictions on
abortion. I am disappointed that it declined to
reconsider that decision.
Pros:
--
Highlights the part of the decision that is a
victory while expressing the disappointment that
opponents of abortion would feel at such an
outcome. That may be as much as people should
reasonably expect in the immediate aftermath of
the decision.
-- Does not present much of a litigation risk, since
it does not commit the Administration to a future
litigation course.
-- A decision of the sort described above would
suggest that the approach most likely to lead to
results in the short term would be to chip away at
Roe, which this option would leave open as a
9
possibility. The Justices might be offended by a
pledge of a frontal assault and be less responsive
in the future.
Cons:
---
Does not address one issue on which even people
without an agenda may expect the Administration to
have a position in advance, what we will do next
on Roe itself.
--
Politically, the Administration might be expected
to commit itself on that issue immediately.
Option 3: Add to 2 an expression of the intention to
press the point in the future.
Same as 2, but add at the end "and hope that it will
see fit to do so in the future, as my Administration
will continue to urge."
Pros:
--
Avoids the political difficulties presented by
failing to include a statement on this point.
Cons:
-- Would lead to claims that the Administration lacks
respect for the rule of law.
--
Might antagonize some of the Justices.
DECISION:
Option 1
Option 2
Option 3
Other
10
D. Roe Reaffirmed, Statute Struck Down
Option 1: No immediate response ("We're studying the
decision")
Pros:
--
Even a decision of this sort could be more or less
bad depending on how it is written.
--
Appropriate response would also depend in part on
the margin of loss. A 5-4 decision might call for
a very different response from a 9-0 one.
Cons:
--
It would be surprising for the Administration not
to express disappointment at a loss of this
magnitude in an ordinary case, let alone this one.
--
Disappointed opponents of abortion would be very
puzzled about why the President did not share
their feelings.
Option 2: Express disappointment at the decision, but
do not describe Administration's future plans
"We're studying the decision. I can say that I am very
disappointed that the Court did not accept our
contention that the people have the constitutional
power to accord some protection to the unborn."
Pros:
--
Shows that the President cares.
--
Not outside the bounds of decorum in dealing with
Supreme Court decisions to be disappointed that
you lost.
Cons:
--
Any criticism of the Court can lead to charges
that the Administration lacks respect for the rule
of law.
--
Any criticism of the Court could be taken
personally by the Justices voting in the majority
and held against the Administration in the future.
--
Does not address the Administration's plans with
respect to Roe in the future, which could leave
11
some opponents of abortion feeling that the
Administration has not gone far enough.
Option 3: Express disappointment at the decision, and
state an intention to continue to challenge Roe
Add to the previous answer: "We will continue to make
this argument to the courts. "
Pros:
--
Is the most that anyone could expect the
Administration to do.
--
Failure to go this far might leave opponents of
abortion uncertain that we are serious and
accordingly unhappy.
--
Could be a useful signal of our seriousness to
Justices voting with us.
Cons:
--
Would certainly lead to loud accusations of
lawlessness on the part of the Administration.
--
Might jeopardize the Administration's credibility
with the Court in other cases.
DECISION:
Option 1
Option 2
Option 3
Other
12
V. OTHER ISSUES CONNECTED WITH THE RESPONSE
In addition to the question of what to say, there is the question
of who should say it and in what context. The options appear to
be a live Presidential statement, a statement by Marlin
Fitzwater, the release of a prepared statement, a statement by
the Attorney General, or some combination of these. Depending on
what decision the Court reaches, a different option for who
should give the response might also be appropriate.
VI. OTHER ISSUES LIKELY TO ARISE IMMEDIATELY
(This portion of the memorandum is informational only.)
Unless the Court both reaffirms Roe and strikes down the statute,
other issues resulting from the decision are sure to arise
requiring your prompt attention. The most significant of these
is that various legislators will undoubtedly introduce new
federal legislation and will want your support. For example,
Congressman Smith plans to introduce legislation forbidding
abortions in federal enclaves except to save the life of the
mother. There may be other legislative proposals that will go
even further. We recommend that you assign somebody the task of
developing a position on these questions.
THE WHITE house
WASHINGTON
May 16, 1989
Dear Dean Vorenberg:
Thank you for your letter of April 17, 1989, concerning the
President's Commission on Federal Ethics Law Reform proposal
regarding Federal judges.
As you may be aware, on April 12th, the President
transmitted to Congress the Government-Wide Ethics Act of 1989,
and the Judicial Salary Act of 1989, which proposes to increase
the annual salary rates for federal judges by 25 percent.
The Government-Wide Ethics Act does not ban members of the
judiciary from engaging in teaching activities for compensation.
Rather, the legislation would extend to the judiciary, the
current executive branch ban on the receipt of honoraria for
speeches, writings, and other appearances in their official
capacity by judges and other judicial branch employees. The
legislation would also impose a cap -- set at 15 percent of an
Executive Level I salary -- on the outside income that could be
earned by members of the judiciary.
It is worth noting that senior officials of the Executive
branch have long been subject to a similar cap on the receipt of
outside earned income. The new legislation merely proposes to
set a single cap applicable to senior officials of all three
branches.
I appreciate your interest in this matter, and assure you
that your views were helpful. Thank you for your concern in this
regard.
Sincerely,
on C. Boyden may
Counsel to the President
James Vorenberg
Dean
Harvard Law School
Cambridge, Massachusetts 02138
THE WHITE HOUSE
May 2, 1989
Dear Judge Nebeker:
As you may know, a number of government officials have recently
asked whether the White House has a policy concerning the
propriety of federal officials becoming officers of for-profit
and non-profit organizations and on participation in fundraising
activities. In an effort to provide guidance on these matters,
my office has developed the enclosed draft memorandum. In view
of the responsibilities of your office, I would appreciate it if
you would review the draft and provide me with any comments or
suggestions you may have.
If you have any questions, please feel free to call me or contact
Amy L. Schwartz of my staff at 456-2674.
Sincerely,
C. Boyden Gray
Counsel to the President
Attachment
Judge Frank Q. Nebeker
Director
Office of Government Ethics
P.O. Box 14108
Washington D.C. 20044
DRAFT; May 1, 1989
MEMORANDUM FOR ALL NONCAREER PRESIDENTIAL APPOINTEES
FROM:
JOHN H. SUNUNU
CHIEF OF STAFF
SUBJECT:
Participation in the Activities of For-Profit and
Non-Profit Private Organizations
A number of individuals have asked whether the White House has a
policy on government officials holding positions in for-profit or
not-for-profit organizations and/or being affiliated with
fundraising events for such organizations. This memorandum is
intended to provide guidance on these issues.
General Guidance
Following the recommendations of the President's Commission on
Federal Ethics Law Reform, the President has sent to Congress
ethics reform legislation that would, among other things,
prohibit senior employees in the federal government from serving
-- with or without compensation -- on the board of directors or
board of trustees or as an officer of a for-profit organization.
For these purposes, the bill defines a senior employee as one who
is required to file a public financial disclosure report (SF-278)
under the Ethics in Government Act.
The bill also provides that a senior employee wishing to serve on
a board (or in equivalent officer positions) of a non-profit
organization would first be required to obtain the approval of
his or her supervisor and the designated agency ethics official
(DAEO). In granting or denying approval, the DAEO would look to
applicable agency standards of conduct, which generally prohibit
federal employees from engaging in outside activities
incompatible with the full and proper discharge of their official
duties (whether on account of a financial or other conflict of
interest, competing time demands, or similar factors). In
addition, you should recognize that if a government official is
an officer in an organization, its financial interests are
attributed to the official, to the extent he or she knows about
them, under federal conflict-of-interest law.
In view of Administration policy and the pending legislation, the
Administration is asking all of you to refrain from serving as a
board member or an officer of any for-profit enterprise and to
resign from any such positions you currently hold. In addition,
we are requesting that you adhere to the case-by-case procedure
described above should you wish to retain board membership or an
officership in a non-profit organization or to seek such a
position in the future. (You should also bear in mind that the
ban on outside earned income in section 102 of Executive Order
12674 prohibits you from receiving compensation in connection
with any such position.) This guidance is not intended to
supersede any more restrictive review procedure currently in
place or to affect current agency practices governing outside
activities by employees other than noncareer Presidential
appointees.
Fundraising Activities
Questions have also arisen about the appropriateness of federal
officials being involved in fundraising activities -- whether or
not in connection with service as a board member or officer of a
non-profit organization. In discussing fundraising, this
memorandum does not address political fundraising activities,
which are governed by separate legal and policy provisions.
As a general matter, federal ethical standards prohibit an
employee from using public office for private gain or giving
preferential treatment to any person or organization. This
standard has been interpreted by the Office of Government Ethics
to preclude any direct fundraising by federal officials even for
charitable causes. Thus, federal officials generally cannot, for
example, be co-signatories of fundraising letters for charitable
organizations in which they may serve as board members or
officers, nor as a general matter should their names appear on
the letterheads of letters making fundraising appeals. For the
same reason, the Office of Government Ethics also objects to the
use of an individual's official title in connection with his or
her participation in the activities of a charitable organization.
I recognize that it has been commonplace over the past few years
for members of the Cabinet to serve as honorary chair or co-chair
of the many Washington D.C. social events that also serve as
fundraising events for charities. This guidance does not address
that practice, and accordingly Cabinet members wishing to serve
as an honorary co-chair for particular events should continue to
consult the designated agency ethics official at their agencies
on a case-by-case basis to determine whether and/or when such
activities are permissible. It has been past White House
practice not to approve requests from White House Office
officials wishing to serve in these honorary positions, and we
will be maintaining that policy.
If you have any questions about this guidance, please contact me
or the Office of the Counsel to the President.