A Question of Ethics: The Year in Government Ethics

by McGuireWoods LLP

Roll Call | December 9, 2014

As long as there are governments, there will be government corruption. The temptations to abuse power are never going away, and neither is human frailty, which means government ethics will remain an important issue for, well, forever.

A look back on 2014 reveals yet another year of explosive government ethics stories, scandals and legal developments. As has been the custom for the year’s final column, I asked several of the top practitioners in the field to name the biggest government ethics stories of the year.

Before turning to those, I have one of my own to mention for its impact on the actual day-to-day operations of the practice of congressional ethics. Last month, John Sassaman stepped down as chief counsel of the Senate Select Committee on Ethics, a position he held for more than six years. Sassaman presided over many high-profile investigations during his tenure and, perhaps more importantly, led a staff that was invariably prompt and thoughtful in responding to questions about Senate Ethics rules. Long known as one of the most well-liked employees of the Senate, Sassaman leaves big shoes to fill.

Robert Walker, former chief counsel of the Senate Ethics Committee who is now with Wiley Rein, cited the death of Carol Dixon, the longtime director of advice and education at the House Ethics Committee, as the ethics story of the year.

“For many years, and for so many people in the House, she was the face, the voice, the source of House ethics advice,” Walker said. “If an institution can show emotion, her memorial service this summer showed how deeply and broadly the House was touched by both her life and her death.”

In terms of impact, Walker also named the Securities and Exchange Commission’s issuance of a subpoena to the House Ways and Means Committee and a committee staffer, seeking evidence relating to an insider trading investigation.

“The SEC’s action in this test case already gets the prize for chutzpah, but if the courts uphold the SEC’s subpoenas — even in part — against the House’s assertion of total immunity from investigation under the Speech or Debate Clause of the Constitution, there will be no denying that the [Stop Trading on Congressional Knowledge] Act drastically changed the rules of the game in D.C. on the private sector’s use and exchange of nonpublic government information,” Walker said.

Setting these aside, one story was a near-unanimous pick as the ethics story of the year: the trial and convictions of former Virginia Gov. Bob McDonnell and his wife, Maureen. On Sept. 4, after a five-week trial and three days of deliberations, a jury in a U.S. District Court in Richmond found the pair guilty of multiple counts of corruption stemming from gifts received from a political donor. The charges alleged the gifts violated not state gift rules, but rather broad federal prohibitions against depriving others of the intangible right to honest services.

“Hands down,” said Stefan Passantino of McKenna, Long & Aldridge. “There’s no competition,” said Meredith McGehee, policy director of the Campaign Legal Center, a public interest group focused on campaign finance and government ethics. “The major development,” said Walker.

From Hollywood appeal to legal implications, each expert cited different reasons for the significance of the McDonnell story. “Not only did the lurid trial … spare no detail in delving into the personal lives of all involved,” Passantino said, “it also provided a catalyst for Virginia — and states everywhere — to take a hard look at their gift and travel rules.”

Although technically not a case focused on campaign finance, McGehee said it nevertheless raised questions going right to the heart of the Supreme Court’s campaign finance decision in Citizens United. “The buying and selling of access, the insistence/delusion that no favors were bought, and characters that are right out of a novel,” she said.

Walker noted the warning the convictions sounded for other government officials and their families. “After an indictment that to some looked shaky,” he said, the message was “that no official act is so small or routine that it can be sold with impunity.”

With this and so much other alleged misconduct in the news this year, one prominent practitioner wondered whether the biggest story of the year may be voters’ indifference to government corruption. Skadden attorney Ken Gross, former associate general counsel of the Federal Election Commission, cited the large number of instances in which an incumbent won re-election in November despite allegations of ethical abuses.

“Black clouds that were exploited in negative advertising against these members did not shake the electorate,” Gross said. “Perhaps the level of cynicism is so high among voters that ethics charges don’t resonate. That may be the biggest scandal of all.”

© Copyright 2014, Roll Call Inc. Reprinted with permission.  For more information, visit www.rollcall.com.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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