WATCH: Warren First Learns Of Ethics Complaint Against Her Over Kavanaugh Fundraising In Middle Of Debate

"Then, then I will, I will check into it — but I don’t know."

US Senator Elizabeth Warren (D-MA) addresses a town hall meeting in Roxbury, Massachusetts, October 13, 2018.
JOSEPH PREZIOSO/AFP/Getty Images

In a rather remarkable moment in a U.S. Senate debate in Massachusetts Tuesday, Democratic Sen. Elizabeth Warren learned for the first time that an ethics complaint has been filed against her for having fundraised off of Brett Kavanaugh's confirmation hearings.

The presidential hopeful senator was first informed of the complaint by her Republican challenger Geoff Diehl in a moment highlighted by The Washington Free Beacon.

"Senator Warren was fundraising illegally using the vote on Justice Kavanaugh, the confirmation vote, to try to raise money for her campaigns," Diehl said.

Warren, who maintained a blank look on her face when Diehl first cited the complaint, attempted to side-step the issue by asking Diehl to name a time that he criticized Trump after he made dismissive remarks about Christine Blasey Ford's uncorroborated allegations.

But the moderators wouldn't let the senator off the hook.

"I would like to drill down on what Representative Diehl said," one moderator said. "The fundraising while the vote was being taken on the Kavanaugh hearing — did you or did you not do that?"

"Actually, I don’t know," said Warren, an admission that caused a stir in the audience.

"Yes, an ethics complaint has been filed about a fundraising email," another moderator stated.

"Then, then I will, I will check into it — but I don’t know," said a flustered Warren.

The Foundation for Accountability and Civic Trust (FACT) sent the complaint to the Senate Select Committee on Ethics chair and vice chair on Monday. The complaint alleges that Sens. Warren and Kamala Harris violated "the Senate Ethics prohibition against linking a promise of official action to a solicitation of campaign contributions" (full text of complaint below):

Senators Warren and Harris sent campaign fundraising emails based upon their official actions during the confirmation process and upcoming vote of Supreme Court Justice Brett Kavanaugh. Senator Warren’s fundraising email stated her position on the ongoing hearing and “demand to delay the confirmation vote.” The email then states: “Elizabeth Warren is running for reelection in 2018 . . DONATE NOW.” Senator Harris sent numerous emails fundraising based upon her official duties. For instance, one of Harris’s fundraising emails stated she “question[ed] Judge Kavanaugh during his Supreme Court confirmation hearings” and indicates her position on the confirmation. Then she requested a contribution with a “CONTRIBUTE” button. Both Senators’ emails were sent during the confirmation process and before the Senators were to vote, and their requested campaign donations were intertwined with their official duties as Senators.

WATCH (video via WFB):

Below is the full text of the complaint:

Re: Senators Warren and Harris Fundraising Based Upon Official Action Dear Senators Isakson and Coons:

The Foundation for Accountability and Civic Trust (FACT) is a nonprofit organization dedicated to promoting accountability, ethics, and transparency in government and civic arenas. We achieve this mission by hanging a lantern over public officials who put their own interests over the interests of the public good.

We request the Senate Select Committee on Ethics immediately investigate Senators Elizabeth Warren and Kamala Harris for violating the Senate Ethics prohibition against linking a promise of official action to a solicitation of campaign contributions. The ethics rules implicated are those that ensure our Senators act based upon merit and not to fund their political campaigns. Violations of this rule threaten the underpinnings of public trust and must be investigated.

Senators Warren and Harris sent campaign fundraising emails based upon their official actions during the confirmation process and upcoming vote of Supreme Court Justice Brett Kavanaugh.1 Senator Warren’s fundraising email stated her position on the ongoing hearing and “demand to delay the confirmation vote.”2 The email then states: “Elizabeth Warren is running for reelection in 2018 . . DONATE NOW.”3 Senator Harris sent numerous emails fundraising based upon her official duties. For instance, one of Harris’s fundraising emails stated she “question[ed] Judge Kavanaugh during his Supreme Court confirmation hearings” and indicates her position on the confirmation.4 Then she requested a contribution with a “CONTRIBUTE” button.5 Both Senators’ emails were sent during the confirmation process and before the Senators were to vote, and their requested campaign donations were intertwined with their official duties as Senators.

Senators must conduct themselves according to the Senate Ethics rules. Under the Senate Ethics Manual’s Scope of The Authority, the Senate “may discipline a Member for any misconduct, including conduct or activity which does not directly relate to official duties, when such conduct unfavorably reflects on the institution as a whole.”6 A Senator who solicits campaign contributions related to official action certainly casts an unfavorable reflection on the Senate. In addition, the use of official action for political fundraising is directly related to official duties. Thus, the Senate Select Committee on Ethics is well within the bounds of its Scope of Authority in investigating and ultimately penalizing this type of unethical behavior.

Senate Ethics Rules prohibit Senators from solicitating campaign contributions based upon any action taken in their official capacity. 7 By linking a promise of official action with campaign contributions, a Senator violates a “basic principle” of Senate Ethics that guards against conflicts of interest.8 The Senate Ethics Manual is clear that a Senator “should never use the prestige or influence of a position in the Senate for personal gain . . . . This provision was intended ‘as a broad prohibition against members, officers or employees deriving financial benefit, directly or indirectly, from the use of their official position.’”9 Moreover, Senators are to act based upon merit, not on partisan affiliation or for campaign contributions.10

Senators Warren and Harris’s campaign fundraising emails inextricably intertwine their official acts with a campaign donation. Warren and Harris stand to gain considerable campaign income as well as important donor information by promising to use their official position as a Senator. This directly violates basic principles underlying Senate Ethics Rules regarding conflicts of interest. “The Senate’s commitment to avoiding conflicts of interest is embodied in Senate Rule 37. These provisions target the possibility or the appearance that Members or staff are ‘cashing in’ on their official positions (i.e., using their positions for personal gain) or that they have personal financial stakes in the outcome of their official duties.” Senators Warren and Harris’s campaign solicitations rely on this “possibility or appearance” of influence in order to acquire a considerable sum of campaign contributions.

This Senate Ethics prohibition is central to the legislative process: Senators should not take action or use official resources in exchange for personal political gain. The public rightly expects its Senators to exercise impartial judgment in performing their duties, completely independent of the prospect of personal political gain. With this fundraising tactic, Senators Warren and Harris indicate to potential contributors that their votes can be influenced by campaign contributions. This is exactly what the Senate Ethics Manual sets out to prohibit. Moreover, this fundraising tactic dangerously incentivizes Senators to take action and positions based on their estimation of what will raise the most campaign contributions—not on the merits of an issue.

For the reasons set forth above, The Senate Select Committee on Ethics should enforce the prohibition against fundraising on the promise of taking official action. Senators Warren and Harris must be held accountable for this violation.

Respectfully submitted,

Kendra Arnold Executive Director, Foundation for Accountability & Civic Trust

[Footnotes, formatting adjusted]

1 Exhibit A; Exhibit B. 2 Exhibit A. 3 Exhibit A. 4 Exhibit B. 5 Exhibit B 6 Senate Ethics Manual, at 13. 7 Official business and campaign fundraising are explicitly distinguished in the Ethics Manual. See Senate Ethics Manual, at 141 (The Senate Ethics Manual explains that “[w]hile some legitimate representative duties, such as services and communications to constituents, might yield some political benefits, they are generally distinguishable from those activities typically understood by congressional rule, statute, and practice to be political ‘campaign’ activities, such as the solicitation of political contributions.”) 8 Senate Ethics Manual, at 66. 9 Id. at 65-66 (citing S. Rep. No. 95—49, The “Nelson Report”). 10 Compare House Ethics Manual, at 147.

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