PMA Investigation: Looking for More than Straw Men?


Congressional Quarterly looks in breadth and depth at the influence of the PMA Group, whose offices were raided by the FBI. (The story is co-written by my old colleague Alex Knott, who started delving into PMA back in 2004.) As good a story as it is … here’s an excerpt clipped from InstaPundit

More than 100 House members secured earmarks in a major spending bill for clients of a single lobbying firm ” The PMA Group ” known for its close ties to John P. Murtha , the congressman in charge of Pentagon appropriations.

It shows you how good they were, said Keith Ashdown, chief investigator at the watchdog group Taxpayers for Common Sense. The sheer coordination of that would take an army to finish.

PMA’s offices have been raided, and the firm closed its political action committee last week amid reports that the FBI is investigating possibly illegal campaign contributions to Murtha and other lawmakers. . . . In the spending bill managed by Murtha, the fiscal 2008 Defense appropriation, 104 House members got earmarks for projects sought by PMA clients, according to Congressional Quarterly’s analysis of a database constructed by Ashdown’s group.

Those House members, plus a handful of senators, combined to route nearly $300 million in public money to clients of PMA through that one law (PL 110-116).

And when the lawmakers were in need ” as they all are to finance their campaigns ” PMA came through for them.

…here comes the big but: it’s doubtful that any of that activity will ever land any of those lawmakers in hot water.

PMA Group appears to be in trouble not because of earmarks or for fluffing up the campaign accounts of members of Congress with legitimate donations (they’ve been a top fluffer for a remarkable number of members), but rather for what appear to be illegal donations made through a straw donor. And while it’s illegal for, say, me to reimburse you for a campaign contribution, lawmakers have taken such contributions and not gotten in any trouble at all. (See Majumder, Bob, for an example that also involves John Murtha.)

Quid pro quos are illegal, but there are serious hurdles to using campaign contributions in any quid pro quo investigation:

Campaign Contributions

A bribery charge can be premised on a campaign contribution. But be careful. It is problematical that a gratuity charge under 201(c) can rest on a bona fide campaign contribution, unless the contribution was a ruse that masqueraded for a gift to the personal benefit of the public officer as was the case in Brewster, supra. This is because campaign contributions represent a necessary feature of the American political process, they normally inure to the benefit of a campaign committee rather than directly to the personal benefit of a public officer, and they are almost always given and received with a generalized expectation of currying favor with the candidate benefitting therefrom. For these reasons, recent Federal jurisprudence on the subject suggests substantial judicial reluctance to extend the Federal crime of gratuities under section 201(c) to bona fide campaign donations.

PRACTICE TIP: Where the transaction represents a bona fide campaign contribution, prosecutors must normally be prepared to prove that it involved a quid pro quo understanding and thereby constituted a “bribe” offense actionable under section 201(b).

COMMENT: This same distinction between bribes, gratuities and lawful campaign contributions has recently been applied to some of the Federal prosecutive theories that are currently used to address bribery and corruption by state and local public officials. For example, in McCormick v. United States, 500 U.S. 257 (1991) the Supreme Court held that the Hobbs Act (18 U.S.C. 1951) did not apply to a series of campaign contributions that were made with a general intent to curry favor with a state senator and to thank him for his support. Noting that campaign contributions are a necessary part of the American political process, the Court held that when an allegedly corrupt payment represents a bona fide campaign contribution, the prosecution must prove the existence of a quid pro quo. This principle was thereafter affirmed shortly thereafter in Evans v. United States, 504 U.S. 255 (1992).

This reminds me of what Rep. Tim Holden said when asked about getting earmarks for a PMA Group client (PMA Group is a big Holden contributor):

”Who is going to contribute to your campaign, people you don’t help?” Holden said, before adding: ”There is no quid pro quo here.”

It will be interesting to see where the PMA probe goes, but I’d be surprised if any of the hundred lawmakers running into trouble for earmarking funds for clients of a big campaign contributor.