Result: Censured ("Denounced")
On September 27, 1988, the Select Committee on Ethics received a complaint from 39 members of the Minnesota Bar alleging financial improprieties by David F. Durenberger (Republican-MN). At the time, the senator was in the midst of his third senatorial campaign.
Statement of the Case
The complaint alleged that a financial agreement between David Durenberger and Piranha Press, which had published his books Neither Madmen Nor Messiahs and Prescription for Change, violated laws and rules within the committee's jurisdiction. In fairness to Durenberger, the committee waited until after the election to look into the charges. Then, based on the initial evidence and a response it received from Durenberger, the committee voted unanimously on March 1, 1989, to proceed with a preliminary inquiry, the first stage of the Ethics Committee's three-stage process. The results of that inquiry led the committee on August 3 to move to the second stage, an initial review, and to retain as special counsel Robert S. Bennett, who had served in that capacity during the 1981 Harrison Williams investigation. In December 1989, during the course of the Piranha Press inquiry, Minnesota newspapers printed a number of allegations about David Durenberger's ownership and use of a Minneapolis condominium, which became the subject of a second inquiry. By May 1990, the committee had found sufficient evidence of misconduct in both instances to proceed to the third stage, a full investigation with trial-like public hearings.
The committee held hearings on June 12 and 13, 1990. In his opening statement, Durenberger spoke movingly of his personal history and problems. Then, at the close of the opening statements, the senator waived his due process rights provided by the committee, including the rights to cross-examine witnesses, call and question his own witnesses, and testify on his own behalf. Instead, he asked the committee to rely on the written record in reaching its decision. This action terminated hearings that had been expected to receive extensive media coverage. In the written record, the senator had defended himself by arguing that he had made mistakes but that he had acted in good faith with no intention of violating any rules. The committee, however, rejected this defense, based on the evidence collected by the special counsel.
The committee unanimously agreed on July 18, 1990, that David Durenberger had "abused his United States Senate office and misused United States Senate funds." In its report issued two days later, the committee found that the senator's relationship with Piranha Press had been carefully structured to circumvent the limits on the amount of honoraria income a senator could receive. In 1985, David Durenberger had signed an agreement with the Press to speak to more than one hundred organizations to promote his books. Each group paid a fee to Piranha Press, which then paid Durenberger quarterly stipends for his efforts. At that time, ethics laws contained no limits on income from stipends while there was a limit on the amount of honoraria that could be received from speaking engagements. During a two-year period, the senator received $100,000 in stipend payments for these supposedly promotional appearances. The committee concluded that the purpose of the arrangement was not to sell the books but rather to allow Durenberger to deliver speeches to organizations that invited him because of his position as senator, not as author of the books, and to collect more payment than the law permitted.
Regarding the second part of the inquiry, the report found that, from 1984 to 1989, Durenberger had devised a complex series of transactions to obscure his ownership of the Minneapolis condominium he used on his visits there. The arrangement allowed him improperly to claim government reimbursement for rent paid. He charged the government a sufficiently high rate per day for the one hundred days a year that he used the unit for business that the reimbursements covered all his annual costs for the condominium. According to the committee report, such financial practices violated both Senate rules and governmental ethics. Other violations included: failing to report on his financial disclosure forms reimbursement from 43 organizations for travel costs for Piranha Press and trips to Boston for personal business; converting a $5,000 campaign contribution to personal use through a transfer to Piranha Press; and accepting free limousine services in Boston, thus breaking the Senate rule regulating acceptance of gifts from anyone with a direct interest in legislation before Congress. The committee did note that, at the time of these actions, Durenberger had been under severe personal stress that had impaired his judgment, but that this fact did not excuse his conduct.
The committee submitted to the Senate a resolution stating that Durenberger's conduct "has been reprehensible" and "in violation of statutes, rules and Senate standards and acceptable norms of ethical conduct." It recommended that he be "denounced" and that he be required to reimburse the Senate for the per diem funds and to donate the excess honoraria income to charity. Before the final report was released, David Durenberger wrote to the committee asking that he be "reprimanded" rather than denounced by the full Senate. In support of his request, he cited his lack of malicious intent and the many measures he had taken to comply with ethics legislation and rules. This plea was denied, based on Special Counsel Robert Bennett's recommendation in his report to the committee. In the 1981 case of Harrison Williams, Bennett declared, he had supported expulsion because the New Jersey senator had acted with "criminal intent." Durenberger, he believed, had not. On the other hand, he contended that a reprimand or other sanction not requiring action by the full Senate would be insufficient, because Durenberger had behaved unethically by "knowingly and willfully" violating laws, rules, and Senate standards.
The report also recommended that the investigation's results be referred to the Federal Election Commission and the Department of Justice.
Response of the Senate
On July 25, 1990, the full Senate considered the committee's resolution. Because David Durenberger unexpectedly informed his colleagues at the beginning of the session that he would not contest the resolution of censure, much of the debate addressed concerns about the disciplinary process and the role of the special counsel. Howell Heflin (Democrat-AL), chairman of the Ethics Committee, emphasized the bipartisan nature of the committee's deliberations and outlined the reasons for the panel's recommendations. He did express concern about the committee's role as prosecutor, judge, and jury. For future investigations, he suggested that the Senate might adopt a procedure similar to one that had been recently enacted by the House of Representatives, which divided the investigative and adjudicative functions into two separate subcommittees. One panel could then function as a grand jury and the other as a trial jury.
While agreeing that the committee's work had not been partisan, Trent Lott (Republican-MS), a committee member, urged that the investigative process be improved. The multiplicity of stages caused a case to drag on, in this instance for almost two years. Meanwhile, the accused individual remained under a cloud. Lott recommended streamlining the procedure by eliminating some of the stages. Committee Chairman Heflin explained, however, that the multi-stage process was actually designed to protect the individual being investigated. Under the committee's rules the two early portions of an inquiry were carried out in closed session, and only the third stage—the formal investigation and hearing—was conducted in public. In fact, on a number of occasions, the confidentiality of the procedure had protected senators against whom unjust charges had been brought with the committee. Heflin also defended the special counsel's work as following the rules established by the committee.
The debate also reflected continuing uncertainty over the terms used in disciplining members. Senator Lott addressed the choice of "denouncement" rather than "censure." Past cases, he said, showed different levels of punishment. Thus, there could be "denouncement, condemnation, censure, and expulsion by the full Senate." He indicated that the committee had chosen denouncement in order to distinguish Durenberger's from previous cases because of the mitigating circumstances and lack of venal intent. When Senator Heflin was questioned about the term, however, he responded that it fell within the parameters of censure. The differences in terminology could be subject to individual interpretation, he explained, but the point was that the Senate as a whole "acts to show its displeasure . . . its disapproval in strong language."
A number of senators praised David Durenberger's hard work and legislative accomplishments and reaffirmed their friendship and sympathy for him, while accepting the committee's decision. At the conclusion of the debate, the Senate passed the resolution denouncing Durenberger by a vote of 96 to 0. After the vote, David Durenberger addressed the Senate, stating, "For past mistakes, I ask your forgiveness. For future challenges, I need your friendship."
The Senate action to denounce David Durenberger did not end his difficulties. On April 20, 1993, the senator was indicted and pleaded not guilty to two felony charges related to filing false claims for reimbursement. A federal judge dismissed the indictment in December 1993, basing his ruling on the "speech and debate" clause of the Constitution (Article I, section 6) that protects senators from prosecution for actions taken in their official capacities. The Senate had submitted a brief to the court in support of Durenberger's argument that the courts could not use affidavits from third parties that he had submitted to the Ethics Committee. The judge observed, however, that the case could probably be made without using the inadmissible evidence, and a grand jury re-indicted the senator on the same charges on February 25, 1994. (In February 1995 the U.S. Circuit Court of Appeals for the District of Columbia ruled that Durenberger could not use the constitutional protection because he was charged with lying about his condominium on his financial disclosure form.) In the midst of these legal problems, Durenberger announced on September 16, 1993, that he would not seek reelection in 1994.
In 1991, as part of further changes in ethics provisions, Congress banned the acceptance of honoraria, as well as of stipends related to official position or duties. The debate in this case reflected the Senate's continuing discomfort with a process that is part investigatory and part adjudicatory, as well as with the expanded role of the special counsel.
The Durenberger case also identifies some emerging issues in misconduct cases. Legal costs for both the committee and senators being investigated have increased substantially. These costs were apparently an important factor in Durenberger's decision to waive his due process rights in the committee hearing. As the number of statutes regulating congressional behavior has increased, so has the role of executive branch agencies, such as the Justice Department, in providing oversight and prosecution of members. If this trend continues, senators charged with misconduct may increasingly face indictments after the Senate completes its internal disciplinary action.
Source: Adapted from Anne M. Butler and Wendy Wolff. United States Senate Election, Expulsion, and Censure Cases, 1793-1990. S. Doc. 103-33. Washington, GPO, 1995.