By Andrew Kerr
The Congressional Progressive Caucus’s two leaders could face civil and criminal penalties for omitting their membership on a dark money group’s board in their House financial disclosure statements, legal experts told The Daily Caller News Foundation.
The two co-chairs of the progressive caucus, Reps. Pramila Jayapal of Washington and Mark Pocan of Wisconsin, served on the board of the Congressional Progressive Caucus Center (CPCC) in 2017, according to the nonprofit’s 990 tax form from that year, the most recently available. But neither lawmaker disclosed their board position on their 2017 financial disclosure statements, as required by the House Committee on Ethics.
“These positions clearly were reportable. It seems pretty cut-and-dry to me,” a former general counsel to the National Republican Congressional Committee, Jessica Furst Johnson, told TheDCNF.
Conservative political law attorney Cleta Mitchell told TheDCNF the potential penalty for lawmakers who file inaccurate financial disclosures could include civil fines and “potential criminal penalties for perjury for filing false reports.”
But both Furst Johnson and Mitchell said it’s unlikely the non-partisan Office of Congressional Ethics will penalize Jayapal and Pocan.
“Under the Ethics in Government Act, if it’s a knowing and willful failure to disclose, then they’re subject to penalties both civil and criminal,” Furst Johnson said. “There is a little bit of leeway that’s typically granted with respect to financial disclosures. The committee seems to give the benefit of the doubt that an omission was unintentional.”
“But if it’s a knowing and willful violation, that’s certainly not the case,” Furst Johnson added.
Errors on financial disclosures statements aren’t uncommon — some 30% of House members had filed amendments to correct their initial disclosures, Roll Call reported in 2011.
The most common mistakes lawmakers make on their financial disclosures involve misreporting assets, capital gains, mortgages and pension plans, according to the House Ethics Committee.
However, omitting positions on the board of an outside nonprofit organization, as Pocan and Jayapal did, is not cited by the ethics committee as a common mistake.
Pocan and Jayapal, who was the first vice chair of the progressive caucus at the time, were two of the five elected members of Congress named as CPCC board members in the nonprofit’s 2017 990. A third, Minnesota attorney general and former Democratic Rep. Keith Ellison, also omitted his membership on the CPCC board from his 2017 House financial disclosure.
The House Committee on Ethics requires representatives to report any board positions they hold in nonprofit organizations, “regardless of whether or not compensation was received.”
There are exceptions that allow representatives to omit select outside board positions, such as those held in an honorary nature, but it doesn’t appear Jayapal or Pocan’s CPCC positions meet that criteria.
The bylaws of the CPCC grant voting rights to elected members of Congress that serve on its board. Members are also given additional “special responsibilities,” such as participating “actively in the governance” of the CPCC and supporting its fundraising goals.
Pocan said at a February townhall that the CPCC would be funding staffers to work for the progressive caucus, which experts previously told TheDCNF is a violation of congressional rules.
Two to 21 staff. That’s a lot of ?? for progressive issues.
— Kara Voght (@karavoght) February 28, 2019
“This whole scheme is a direct violation of federal law requiring Congress to utilize only appropriated funds for its operations,” Mitchell had told TheDCNF. “There are so many legal issues with this setup: violations of federal law, violations of House rules, and complete disregard of the rule of law.”
It’s unclear who’s funding the CPCC: As a 501(c)(3) organization, the IRS does not require it to disclose its donors’ identities.
Neither Pocan nor Jayapal responded when asked why they omitted their CPCC board positions from their 2017 financial disclosures.
The progressive caucus’s membership includes Reps. Alexandria Ocasio-Cortez of New York, Ilhan Omar of Minnesota, Rashida Tlaib of Michigan and 2020 presidential frontrunner Vermont Sen. Bernie Sanders.
Furst Johnson said it was telling that Jayapal and Pocan, both counted as leaders of the progressive caucus, made omissions on their financial disclosures, while Grijalva and Lee did not.
“I think that candidates are now very sensitive to the fact that these documents are public and I think that is certainly something that is considered when compiling these documents,” she said. “I don’t know what these individuals were thinking when they compiled these, but I think people are definitely aware of the political sensitivities.”
In addition to the CPCC’s 2017 form 990, archived versions of its website reveal Pocan, Ellison, Grijalva and Lee were listed as “ex-officio” board members that year, and Jayapal was added as an “ex-officio” board member on its website in 2018.
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