The recent Washington Post scandal dealing with thinly disguised "influence peddling" has received lots of attention recently. But no one seems to be asking the obvious questions. Did the Washington Post "salons" whereby a dinner and discussion at the Washington Post publisher's house for big money would provide those who coughed up cash a chance to have "an evening with the right people" who "can alter the debate" on health care reform violate influence peddling and lobbyist laws? And what congressional and Obama administration officials were on the guest list? Just a cursory look at some legislation on the books suggests the answer to the first question is: yes. This diary first looks at what the WaPo was doing and then at the Federal Lobbying Disclosure Act. This diary also calls for enforcement of the penalty provisions of that act.
Politico recently broke the story about the Washington Post's dinner salons where for from $25,000 to $250,000:
the Post offered lobbyists and association executives off-the-record access to "those powerful few" — Obama administration officials, members of Congress, and even the paper’s own reporters and editors.
The astonishing offer was detailed in a flier circulated Wednesday to a health care lobbyist, who provided it to a reporter because the lobbyist said he felt it was a conflict for the paper to charge for access to, as the flier says, its "health care reporting and editorial staff."
SOURCE: http://www.politico.com/...
The "salon dinners" were set to begin on July 21st at the WaPo's publisher's house and the first one was to deal with health care reform. A flier from WaPo, as described by Politico, detailed the events:
Underwriting Opportunity: An evening with the right people can alter the debate," says the one-page flier. "Underwrite and participate in this intimate and exclusive Washington Post Salon, an off-the-record dinner and discussion at the home of CEO and Publisher Katharine Weymouth. ... Bring your organization’s CEO or executive director literally to the table. Interact with key Obama administration and congressional leaders."
"Spirited? Yes. Confrontational? No," it said. "The relaxed setting in the home of Katharine Weymouth assures it. What is guaranteed is a collegial evening, with Obama administration officials, Congress members, business leaders, advocacy leaders and other select minds typically on the guest list of 20 or less. ...
The first "Salon" was to be called "Health-Care Reform: Better or Worse for Americans? The reform and funding debate." More were anticipated, and the flier described the opportunities for participants:
"Offered at $25,000 per sponsor, per Salon. Maximum of two sponsors per Salon. Underwriters’ CEO or Executive Director participates in the discussion. Underwriters appreciatively acknowledged in printed invitations and at the dinner. Annual series sponsorship of 11 Salons offered at $250,000 ... Hosts and Discussion Leaders ... Health-care reporting and editorial staff members of The Washington Post ... An exclusive opportunity to participate in the health-care reform debate among the select few who will actually get it done. ... A Washington Post Salon ... July 21, 2009 6:30 p.m. ...
SOURCE: same as above
So to sum up, the Washington Post, was offering to participants who were willing to pay from $25,000 to $250,000 a dinner on July 21st with key members of the Obama administration, Congress, and the WaPo's own staff, centering on health care reform an "evening with the right people can alter the debate" in the flier's words.
Aside from the obvious concerns about journalistic integrity (is there such a thing anymore?) and political integrity (ditto) this event seems to fly in the face of at least one law: The Federal Lobbying Disclosure Act. That law regulates lobbying at the federal level. It broadly defines "lobbying contacts":
For reporting purposes, the question of which officials are "covered" is quite simple with respect to Congress and somewhat less clear with regard to the Executive Branch.
- Covered Legislative Branch Officials
Members of Congress;
An elected officer of either House;
Any employee of, or any other individual functioning in the capacity of (but not volunteers or contractors) a Member of Congress, a committee, a leadership staff, or a working group or caucus; or
A senior employee of the Clerk of the House or Secretary of the Senate.
- Covered Executive Branch Officials
The President, Vice President, and any employee in the Executive Office of the President;
Any officer serving in level I-V of the Executive Schedule: agency heads, assistant secretaries, deputy assistant secretaries, general counsels of agencies, and so forth;
Any member of the uniformed services whose pay grade is at or above 0-7 under section 201 of title 37 United States Code; and
Any other employee serving in a "confidential, policy determining, policy-making, or policy-advocating" position as described in section 7511 (b)(2) of title 5, United States Code. This includes so-called "Schedule C" employees.
In practice, it can sometimes be difficult to determine whether an executive branch official is "covered." One rule of thumb is that if the official has a significant role in the formulation of policy, then it’s likely he or she is covered. Where there is uncertainty, lobbyists should always ask. All government officials are required to disclose their status if asked by a lobbying contact.
SOURCE: http://www.lobbyinginfo.org/...
In the current case, WaPo was promoting access to members of Congress and to the Obama administration, so these are "covered" officials that apply under the act.
Similary the act defines "lobbying activities" broadly:
What Are "Lobbying Activities"?
The time spent on a lobbying contact and efforts in support of such contacts. These include the preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others.
SOURCE: same as above.
Clearly, the evening WaPo salons would be "time spent on a lobbying contact and efforts in support of such contacts."
So, the lobbying activities and people involved are clearly covered by the Federal Lobby Disclosure Act. The same act requires registration of lobbyists:
A lobbyist or lobbying firm must register within 45 days of making a lobbying contact or being employed for such activities, whichever occurs first.
So the question is: did the WaPo register under this act? Note that although the July 21st dinner in question was cancelled the planning for this series of events appears to have begun long ago. Politico wrote:
Charles Pelton, The Post business-side employee listed as the event contact, seemed to dispute Brauchli’s version of events.
Pelton was quoted by Post ombudsman Andy Alexander in an online commentary as saying that newsroom leaders, including Brauchli, had been involved in discussions about the salons and other events."This was well-developed with the newsroom," Pelton told Alexander. "What was not developed was the marketing message to potential sponsors."
SOURCE: same Politico cite as above (emphasis added)
Moreover, Emptywheel over at Firedoglake points out this language (which was subsequently snipped out by the WaPo's Howard Kurtz) which shows that the publisher of the WaPo knew about these events:
"Weymouth knew of the plans to host small dinners at her home and to charge lobbying and trade organizations for participation."
SOURCE: http://emptywheel.firedoglake.com/...
Why this is important (and Emptywheel misses this) are the criminal implications of this statement (see legal discussion below at Update #1).
Back in April of 2009, Howard Kurtz of the Washington Post wrote a glowing review of the Atlantic salon dinners that the Washington Post then apparently decided to replicate. Here's Kurtz describing these plush and cozy events:
"Last Tuesday evening, Rahm Emanuel quietly slipped into an eighth-floor office at the Watergate. white-jacketed waiters poured red and white wine and served a three-course salmon and risotto dinner, the White House chief of staff spent two hours chatting with some of Washington's top journalists -- excusing himself to take a call from President Obama and another from Hillary Clinton.
As the journalists hurled questions and argued among themselves, Emanuel said: "This feels a lot like a Jewish family dinner."
For more than a year, David Bradley, the Atlantic's soft-spoken owner, has hosted these off-the-record dinners at a specially built table in his glass-enclosed office overlooking the Potomac. And the guests, from Treasury Secretary Tim Geithner to Fed Chairman Ben Bernanke to Jordan's King Abdullah II, are as A-list as they come.
http://www.washingtonpost.com/...
Kurtz's gushing words hardly seem like criticism from WaPo's newsroom and the WaPo seemed intent on going beyond the Atlantic's dinners which seem to be journalists asking policymakers questions. And to be sure, there has long been a tradition in D.C. of having dinners and cocktail mixers among the power elite. But the WaPo's "salon" concept took this several steps farther, bordering on the illegal: big money was to be raked in for offering influence peddlers the opportunity to mix with those fashioning policy.
In conclusion, let me say that:
- It appears, on its face, that the WaPo's "salon" dinners may have violated the Federal Lobbying Disclosure Act. That act provides for "paper tiger" penalties of "civil fines of up to $50,000 for knowingly failing to comply with the LDA".
- The FLDA act clearly needs to be revamped and revised with much stiffer civil penalties and also the addition of criminal sanctions.
- The United States Attorney for the District of Columbia should initiate an investigation into whether FLDA was violated. If so, prosecutions should occur. The US Attorney should also look into whether any other laws have been violated.
- The question arises of whether anyone from Congress or the Obama administration was invited to the WaPo salons and also whether they accepted. Clearly the WaPo could not have sent fliers out about the July 21st salon offering access to powerful members of Congress and the Obama administration if no one was coming to dinner.
- It is obvious that the Washington, D.C. is a cesspool of corruption, involving not only politicians but influence peddlers, lobbyists, and even the mainstream media which our Founding Fathers saw as a watchdog. There should be more and stiffer laws enacted on lobbyists and lobbying and those laws should include criminal penalties.
UPDATE #1: Some posters below have raised the question: how can any prosecution occur if the dinners never came off? The answer to this legal question is not as simple as it may seem and involves discussion of inchoate crimes, overt acts, attempts and conspiracy. If, for example, a tough prosecutor decided to use conspiracy law or charge an attempt in this case, there is ample case law to support the position that just about any act in furtherance of a conspiracy could lead to a conviction even though the final act did not occur. This is explained by the legal hornbook Criminal Law by David C. Brody et al:
"...courts are typically very lenient in their interpretation of the [overt act] requirement, deeming virtually any act in furtherance sufficient."
The same source illustrates the difference between an attempt and conspiracy conviction:
"To obtain an attempt conviction, the prosecutor must prove that the actor performed an act beyond mere preparation...To obtain a conspiracy conviction, however, the prosecutor need only prove that the conspirators agreed to undertake a criminal scheme, or at most, that they took an overt act in pursuance of the conspiracy. Even an insignificant act may suffice."
Some discussion of inchoate crimes is also necessary. Criminal law largely deals with criminal acts that have been consummated. A has murdered B; C and D have robbed a bank, for instance: these are crimes that have occurred. But the final act NEED not have been committed in conspiracies or attempts. E and F and G can be found guilty of a conspiracy to rob a bank, for instance, even if they have not actually done it. In inchoate crimes:
"the law criminalizes behaviors that have not yet necessarily culminated in a tangible social harm. ...[Inchoate crimes] target for punishment behaviors that, if allowed to continue unabated would result in illegal behavior and greater social harm. Although no tangible social harm has yet occurred, society feels justified in stepping in to insure that the target of the inchoate offense ...does not occur."
In the instant case, the WaPo apparently held several meetings on this subject (see quotes from Politico in the diary) going back some time, fashioned the concept of the "salons", its publisher was even aware of these events and the fact that money would be charged and lobbyists and high goverment officials would be in contact (see the snippet excised by Howard Kurtz), WaPo put out a flier describing the event, AND THE WAPO VERY LIKELY BEGAN CONTACTING MEMBERS OF THE CONGRESS AND THE ADMINISTRATION with invitations to attend. [We now know this happened as per Update #2 below]. After all, the cancellation only occurred some 3 weeks before the dinner and everyone knows that you have to get you guest list out far in advance of the dinner. ALL of the foregoing would constitute overt acts in furtherance of a conspiracy and probably also acts beyond mere preparation for an attempt conviction. Moreover, the mere fact of the flier being sent out (and guests being invited) would appear enough for a charge of criminal solicitation even if the event (the salon) never occurred:
"Liability for solicitation arises at the moment the actor, with the requisite intent, asks or encourages another to commit a crime even if the person solicited refuses to carry out the criminal overture. ... As a general rule, solicitation is complete when the request, encouragement, command or incitement occurs."
SOURCE: http://books.google.com/...
UPDATE #2:
Thanks to poster Garrett below who notes a very helpful story by Emptywheel on some elements of the WaPo influence scandal which can be found here:
http://emptywheel.firedoglake.com/...
Emptywheel provides a couple of names of people on the "guest list" which included a congressman, individuals from Kaiser Permanente and a top Obama adiministration official:
The key players, Howie [Kurtz] reveals, were supposed to be White House health care reform czar Nancy-Ann DeParle, Blue Dog Jim Cooper, and Kaiser Permanente, all big players in the upcoming healthcare fight.
Emptywheel doesn't, however, ask the legal questions that should be raised. With the Obama health czar, Nancy-Ann DeParle and the congressional guest, the FLDA Act is triggered. As a lawyer, I'm sure the WaPo's lawyers went apeshit when they saw the flier and read the stories about this; hence Kurtz's snippings at their request because they provide damning information that could support criminal conspiracy and solicitation charges.