" ! HOUSE OF REPRESENTATIVES 108TH CONGRESS

2d Session 

REPORT

108–722 

Calendar No. 235 

INVESTIGATION OF CERTAIN ALLEGATIONS 

RELATED TO VOTING ON THE MEDICARE 

PRESCRIPTION DRUG, IMPROVEMENT, AND 

MODERNIZATION ACT OF 2003 

R E P O R T 

OF THE

COMMITTEE ON STANDARDS OF 

OFFICIAL CONDUCT 

MR. HULSHOF FROM THE INVESTIGATIVE SUBCOMMITTEE SUBMITTED THE FOLLOWING REPORT TO THE COMMITTEE ON 

STANDARDS OF OFFICIAL CONDUCT 

OCTOBER 4, 2004.—Refered to the House Calendar and ordered to be 

printed 


E:\Seals\Congress.#13
INVESTIGATION OF CERTAIN ALLEGATIONS RELATED TO VOTING ON THE MEDICARE PRESCRIPTION DRUG, IMPROVEMENT, AND 

MODERNIZATION ACT OF 2003 

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

96–212 

" ! HOUSE OF REPRESENTATIVES 108TH CONGRESS

2d Session 

REPORT

2004

108–722 

Calendar No. 235 

INVESTIGATION OF CERTAIN ALLEGATIONS 

RELATED TO VOTING ON THE MEDICARE 

PRESCRIPTION DRUG, IMPROVEMENT, AND 

MODERNIZATION ACT OF 2003 

R E P O R T 

OF THE

COMMITTEE ON STANDARDS OF 

OFFICIAL CONDUCT 

MR. HULSHOF FROM THE INVESTIGATIVE SUBCOMMITTEE SUBMITTED THE FOLLOWING REPORT TO THE COMMITTEE ON 

STANDARDS OF OFFICIAL CONDUCT 

OCTOBER 4, 2004.—Refered to the House Calendar and ordered to be 

printed 


E:\Seals\Congress.#13
(II) 

COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT 

JOEL HEFLEY, Colorado 

Chairman 

DOC HASTINGS, Washington 

JUDY BIGGERT, Illinois 

KENNY C. HULSHOF, Missouri 

STEVEN C. LATOURETTE, Ohio 

ALAN B. MOLLOHAN, West Virginia 

Ranking Minority Member 

STEPHANIE TUBBS JONES, Ohio 

GENE GREEN, Texas 

LUCILLE ROYBAL-ALLARD, California 

MICHAEL F. DOYLE, Pennsylvania 

JOHN E. VARGO, Chief Counsel/Staff Director 

PAUL M. LEWIS, Counsel to the Chairman 

MARY COLLEEN MCCARTY, Assistant to the Ranking Minority Member 

CAROL E. DIXON, Counsel 

KENNETH E. KELLNER, Counsel 

BERNADETTE C. SARGEANT, Counsel 

JOHN SASSAMAN, Jr., Counsel 

PETER VAN HARTESVELDT, Counsel 

PETER L. JOHNSON, Systems Administrator 

AMELIA SNIDER, Staff Assistant 

JOANNE WHITE, Administrative Assistant 

INVESTIGATIVE SUBCOMMITTEE

KENNY C. HULSHOF, Missouri 

JOHN B. SHADEGG, Arizona 

MICHAEL F. DOYLE, Pennsylvania 

WILLIAM D. DELAHUNT, Massachusetts 

KENNETH E. KELLNER, Counsel to the Investigative Subcommittee 

BERNADETTE C. SARGEANT, Counsel to the Investigative Subcommittee 

(III)

LETTER OF TRANSMITTAL 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT, 

Washington, DC, October 4, 2004. 

Hon. JEFF TRANDAHL, 

Clerk, House of Representatives, 

Washington, DC. 

DEAR MR. TRANDAHL: Pursuant to Rule 21(a) of the Committee 

on Standards of Official Conduct, and Clauses 3(a)(2) and (b) of 

Rule 11 of the House of Representatives, and by direction of the 

Committee on Standards of Official Conduct, we herewith transmit 

the attached Report, ‘‘Investigation of Certain Allegations Related 

to Voting on the Medicare Prescription Drug, Improvement, and 

Modernization Act of 2003’’ 

Sincerely, 

JOEL HEFLEY, 

Chairman. 

ALAN B. MOLLOHAN, 

Ranking Minority Member. 

(V)

C O N T E N T S 

Page 

I. Executive Summary ......................................................................................... 3

II. Conduct of the Inquiry ..................................................................................... 4

A. Establishment of Investigative Subcommittee .................................. 4 

B. Investigative Process ........................................................................... 12 

III. Narrative Summary of Evidence ..................................................................... 14 

A. Events Preceding the Vote on the Medicare Prescription Drug 

Act ....................................................................................................... 14 

1. Telephone Conversations Between Representative Nick Smith 

and a Former Member of his Congressional Staff ................... 14 

2. Conversation with Majority Leader Tom DeLay ........................ 18 

3. Representative Smith’s Telephone Conversation with Brad 

Smith ............................................................................................ 21 

4. Remarks Made by Representative Smith to Fellow Members 

at the Hunan Dynasty Restaurant ............................................ 22

B. Events on the House Floor During and Immediately Following 

the Vote ............................................................................................... 26 

1. Representative Smith’s Interaction with Speaker Hastert and 

Secretary Tommy Thompson ...................................................... 26 

2. Representative Smith’s Interaction with Representative William Thomas and Representative Nancy Johnson ................... 28 

3. Representative Smith’s Interaction with Representative 

Candice Miller ............................................................................. 28 

4. Representative Smith’s Interaction with Representative 

James T. Walsh ........................................................................... 30 

5. Representative Smith’s Interaction with Representative 

Randy ‘‘Duke’’ Cunningham ....................................................... 32

6. Representative Smith’s Contacts with Unidentified Members .. 33

C. Representative Smith’s Actions After the Vote and His Allegations 

of Wrongdoing ..................................................................................... 34 

IV. Findings and Recommendations ..................................................................... 36 

A. Summary of Findings .......................................................................... 36

B. Review of Relevant Standards of Conduct ......................................... 38

C. Conclusions Regarding the Conduct of Certain Members ................ 39

1. Representative Nick Smith .......................................................... 39

2. Representative James T. Walsh and Representative Randall 

‘‘Duke’’ Cunningham ................................................................... 41

3. Representative Candice Miller ..................................................... 41

4. Majority Leader Tom DeLay ........................................................ 42

D. Additional Recommendations ............................................................. 43

Exhibit List .............................................................................................................. 44

Exhibits .................................................................................................................... 45

96–212 

Calendar No. 235 

108TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 108–722 

INVESTIGATION OF CERTAIN ALLEGATIONS RELATED TO 

VOTING ON THE MEDICARE PRESCRIPTION DRUG, IMPROVEMENT, AND MODERNIZATION ACT OF 2003 

OCTOBER 4, 2004.—Referred to the House Calendar and ordered to be printed 

Mr. HEFLEY, from the Committee on Standards of Official Conduct, 

submitted the following 

R E P O R T 

The Committee on Standards of Official Conduct (‘‘Committee’’) 

submits this Report pursuant to House Rule XI, Clause 3(a)(2), 

which authorizes the Committee to investigate any alleged violation by a Member, officer, or employee of the House of Representatives, of the Code of Official Conduct or of any law, rule, regulation, 

or other standard of conduct applicable to the conduct of such 

Member, officer, or employee. 

On March 17, 2004, the Committee adopted a resolution which 

established an Investigative Subcommittee to investigate alleged 

communications received by Representative Nick Smith linking 

support for the congressional candidacy of his son with Representative Smith’s vote on the Medicare Prescription Drug, Improvement, 

and Modernization Act of 2003 (‘‘Medicare Prescription Drug Act’’ 

or ‘‘Medicare legislation’’). This action was undertaken following 

certain public statements made by Representative Smith relating 

to the vote on the Medicare legislation. 

The Investigative Subcommittee completed its investigation in 

September of this year. Pursuant to its charge, at the conclusion 

of its inquiry, the Investigative Subcommittee prepared a Report to 

the full Committee with the Investigative Subcommittee’s findings, 

conclusions, and recommendations. 

The Report of the Investigative Subcommittee in this matter was 

unanimously adopted by that body on September 29, 2004. On that 

same date, the Investigative Subcommittee transmitted its Report 

to the Committee. 

By unanimous vote on September 30, 2004, the Committee 

adopted the Report of the Investigative Subcommittee and includes 

2 

that Report herewith as part of the Committee’s Report to the 

House of Representatives in this matter. By this act, the Committee approves and adopts the findings, conclusions, and recommendations of the Investigative Subcommittee, including the 

recommendation in the Investigative Subcommittee’s Report that 

the publication of its Report will serve as a public admonishment 

by the Committee to Representative Smith, Representative Miller, 

and Majority Leader DeLay regarding their conduct in this matter. 

For the reasons discussed herein and in the Investigative Subcommittee’s Report, the Investigative Subcommittee ultimately concluded that Representative Smith, Representative Miller, and Majority Leader DeLay should be publicly admonished for their conduct as described in the Investigative Subcommittee’s Report. The 

Investigative Subcommittee, however, for the reasons explained in 

its Report, does not recommend that further proceedings be initiated regarding the conduct of any of these Members pursuant to 

House and Committee rules. 

As explained in detail in the Investigative Subcommittee’s Report, the conduct of Representative Smith in this matter could support a finding that he violated the House Code of Official Conduct. 

Among other findings reached by the Investigative Subcommittee 

regarding Representative Smith’s conduct in this matter, the Investigative Subcommittee found that contrary to public statements 

made by Representative Smith, no group, organization, business interest, or corporation of any kind, or any individual affiliated with 

any such entities, offered $100,000 or any other specific sum of 

money to support the congressional candidacy of Brad Smith in 

order to induce Representative Nick Smith to vote in favor of the 

Medicare Prescription Drug Act. Similarly, the Investigative Subcommittee found that Representative Nick Smith was not offered 

an endorsement or financial support for his son’s candidacy from 

the National Republican Congressional Committee in exchange for 

voting in favor of the Medicare Prescription Drug Act. Statements 

made to that effect by Representative Smith appear to have been 

the result of speculation or exaggeration on the part of Representative Nick Smith. In addition, Representative Smith failed to cooperate fully with the Chairman and Ranking Minority Member of the 

Committee on Standards of Official Conduct in their efforts to develop information informally about his allegations. As explained in 

the Report, Representative Smith failed to exercise reasonable 

judgment and restraint, and is accountable for making public statements that risked impugning the reputation of the House. 

The Investigative Subcommittee also found that Majority Leader 

Tom DeLay offered to endorse Representative Smith’s son in exchange for Representative Smith’s vote in favor of the Medicare 

bill. In the view of the Investigative Subcommittee, this conduct 

could support a finding that Majority Leader DeLay violated House 

rules. The Investigative Subcommittee concluded that it is improper for a Member to offer or link support for the personal interests of another Member as part of a quid pro quo to achieve a legislative goal. 

The Investigative Subcommittee reached a similar conclusion regarding the conduct of Representative Candice Miller, who made a 

statement to Representative Smith on the House floor during the 

vote on the Medicare legislation that referenced the congressional 

3 

candidacy of Representative Smith’s son. Representative Smith 

fairly interpreted Representative Miller’s statements to him during 

the vote as a threat of retaliation against him for voting in opposition to the bill. 

Although the Investigative Subcommittee learned that two other 

Members—Representative Randall ‘‘Duke’’ Cunningham and Representative James T. Walsh—also made statements to Representative Smith referencing that congressional candidacy of Representative Smith’s son, the Committee emphasizes that it was the Investigative Subcommittee’s conclusion that neither of those Members 

violated House rules. 

The Report of the Investigative Subcommittee clarifies the standards of conduct applicable to Members and others within the jurisdiction of the Committee. Specifically, Members, employees, and officials of the House are advised that the linking of official actions 

with personal considerations in the manner described in the Investigative Subcommittee’s Report is impermissible and violates House 

rules. 

The Report also contains procedural recommendations for future 

investigations undertaken by the Committee and for the conducting 

of House business. The procedural recommendations include a recommendation that House rules be amended so as to limit access to 

the House floor during House debate by Cabinet-level officials, except for such officials that are former Members. See House Rule IV, 

Clause 2(a)(12) (permitting ‘‘Heads of departments’’ to ‘‘the Hall of 

the House’’). 

I. EXECUTIVE SUMMARY

On March 17, 2004, the Committee on Standards of Official Conduct established an Investigative Subcommittee to investigate alleged communications received by Representative Smith linking 

support for the congressional candidacy of his son with Representative Smith’s vote on the Medicare Prescription Drug, Improvement, 

and Modernization Act of 2003 (hereafter the ‘‘Medicare Prescription Drug Act’’ or ‘‘Medicare legislation’’). The investigation encompassed certain public statements made by Representative Smith, 

including statements in which Representative Smith alleged that 

‘‘bribes’’ and other improper offers were made to persuade Members 

of the House to vote in favor of the Medicare Prescription Drug Act. 

The Investigative Subcommittee was authorized to conduct a full 

and complete investigation into the alleged communications received by Representative Smith, and was directed to report to the 

full Committee at the conclusion of its inquiry with the Investigative Subcommittee’s findings, conclusions, and recommendations. 

The Investigative Subcommittee concluded that the public allegations made by Representative Smith stemmed from his reaction to 

a conversation he had with a friend and former staff member, as 

well as from interactions Representative Smith had with several 

Members of the House during or near the time of the vote on the 

Medicare Prescription Drug Act. Regarding the conversation Representative Smith had with the former staff member, the record indicates that the staff member was not attempting to influence Representative Smith’s vote, but was merely discussing possible consequences of Representative Smith’s vote in favor of or in opposition to the Medicare legislation. Similarly, the information learned 

4 

1Such recommendations relate to the sequestration and representation of witnesses, and to 

the current House Rule admitting members of the President’s cabinet to the House floor during 

House proceedings. 2See 149 Cong. Rec. H12295–96 (daily ed. Nov. 21, 2003). 

by the Investigative Subcommittee about Representative Smith’s 

encounters with different Members of the House (as described in 

this Report) did not support many of the allegations made by Representative Smith. 

The evidence obtained by the Investigative Subcommittee in this 

matter included, but was not limited to, the sworn testimony of 17 

Members of the House (including Representative Nick Smith), and 

interviews and sworn testimony obtained from 12 other witnesses. 

During the inquiry, approximately 1400 pages of transcribed sworn 

testimony and witness statements resulted from proceedings before 

the Investigative Subcommittee or interviews with Investigative 

Subcommittee counsel. In addition, approximately two thousand 

pages of documents were supplied to the Investigative Subcommittee in response to subpoenas for documents and records. 

As explained in this Report, the conduct of Representative Smith 

in this matter raises concerns that he himself violated a provision 

of the House Code of Official Conduct. The Investigative Subcommittee reached a similar conclusion regarding the conduct of 

two other Members of the House in this matter. The Investigative 

Subcommittee could pursue these matters only if its jurisdiction 

were expanded pursuant to Committee rules and the resolution 

adopted by the full Committee on March 17, 2004. For the reasons 

discussed herein, however, even though the Investigative Subcommittee concluded that there is substantial reason to believe 

that violations of the Code of Official Conduct occurred, the Investigative Subcommittee does not recommend in this Report that its 

jurisdiction be expanded so as to seek formal disciplinary action 

against any Member regarding any matter discussed in this Report. 

In addition to the foregoing, a description of the Investigative 

Subcommittee’s investigative efforts, and an explanation of all the 

Investigative Subcommittee’s findings are also delineated in this 

Report. The Report also contains procedural recommendations for 

future investigations undertaken by the Committee,1 as well as 

proposals for clarification of certain standards of conduct applicable 

to the conduct of Members, officers, and employees of the House in 

the performance of their duties or the discharge of their responsibilities. 

II. CONDUCT OF THE INQUIRY

A. ESTABLISHMENT OF INVESTIGATIVE SUBCOMMITTEE

On November 22, 2003, the House approved the Conference Report on the bill H.R. 1, the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, by a vote of 220–215.2 The 

vote was called at approximately 3:00 a.m., and concluded at approximately 5:51 a.m. 

5 

3 Representative Nick Smith has served as a Member of Congress from the Seventh District 

of Michigan since January 1993. 4The address of Representative Nick Smith’s congressional Web site is http://www.house.gov/ 

nicksmith/. 5The Washington Post article dated November 23, 2003 that is cited in Representative Nick 

Smith’s press statement of November 24, 2003 purported to describe certain activities on the 

House floor that occurred during the vote on the Medicare Prescription Drug Act, including reContinued 

The following day, Representative Nick Smith 3 posted a column 

on his official congressional Web site regarding the November 22 

vote on the Medicare legislation.4

Exhibit 1. Representative Smith’s column included the following 

statements: 

Votes in the House usually last 15 minutes plus a traditional two minute cushion. But because the leadership did 

not have the votes to prevail, this vote was held open for 

a record two-hours-and–51 minutes as bribes and special 

deals were offered to convince members to vote yes. [Emphasis added.] 

I was targeted by lobbyists and the congressional leadership to change my vote, being a fiscal conservative and 

being on the record as a no vote. Secretary of Health and 

Human Services Tommy Thompson and Speaker of the 

House Dennis Hastert talked to me for a long time about 

the bill and why I should vote yes. Other members and 

groups made offers of extensive financial campaign support and endorsements for my son Brad who is running for 

my seat. They also made threats of voting against Brad if 

I voted no. Brad heard about what was going on and called 

me to say he didn’t want to get to Congress that way and 

that I should do the right thing. That added to my resolve. 

On November 24, 2003, Representative Nick Smith issued a 

press statement 

(Exhibit 2), also posted on his Web site, in which he stated 

Washington was abuzz Monday over the resolve of Congressman Nick Smith (R-Michigan) who resisted intense 

pressure to vote for the Medicare bill. Following a story 

that appeared on Sunday in the Washington Post, Congressman Nick Smith responded with this statement: 

‘‘I thought I knew ‘arm-twisting’ serving 16 years in the 

Michigan legislature and 11 years in the United States 

Congress. However, this was the most intense and strongest pressure to change my vote that I’ve ever experienced.’’ 

‘‘Being a strong fiscal conservative and having voted no 

on the two prescription drug bills I was a target for early 

pressure to vote yes on this third go-round.’’ 

‘‘My only regret is that it might have hurt my son. Advocates of the Medicare prescription drug bill had figured out 

that my vulnerability might lie in my strong support for 

my family. Since I’m retiring and my son Brad is running 

for my seat. I got significant promises for help for his campaign and threats they’d work against him if I voted no.’’ 

‘‘Brad got word of the situation and called me and told 

me that he didn’t want to go to Congress this way. He told 

me to do the right thing. That helped my resolve.’’ 5

6 

ported efforts by Speaker J. Dennis Hastert and Health and Human Services Secretary Tommy 

G. Thompson to persuade Representative Nick Smith to vote in favor of the Medicare Prescription Drug Act. Exhibit 3. 6 In an article that was published on line in Slate.com on December 1, 2003, Representative 

Smith’s chief of staff Kurt Schmautz is quoted as saying that the allegations in the article published in the Chicago Sun-Times are ‘‘basically accurate.’’ Exhibit 6. 7See Exhibit 7. Exhibit 7 is a transcript prepared from a digital audio copy of the radio interview. 

The statements by Representative Nick Smith were followed by 

a series of news reports referencing Representative Smith’s vote on 

the Medicare Prescription Drug Act. For example, an article published by Human Events Online on November 26, 2004, quotes 

Representative Smith as saying Brad Smith would receive ‘‘almost 

unlimited financial support, plus some nationally recognized names 

to endorse him’’ if Representative Smith voted in favor of the Medicare Prescription Drug Act. Exhibit 4. 

In addition, the following description of alleged events during the 

vote on the Medicare Prescription Drug Act was contained in a column published in the Chicago Sun-Times on November 27, 2004 

(Exhibit 5): 

[Nick] Smith, self term-limited, is leaving Congress. His 

lawyer son Brad is one of five Republicans seeking to replace him from a GOP district in Michigan’s southern tier. 

On the House floor, Nick Smith was told business interests 

would give his son $100,000 in return for his father’s vote. 

When he still declined, fellow Republican House members 

told him that they would make sure Brad Smith never 

came to Congress. After Nick Smith voted no and the bill 

passed, Duke Cunningham of California and other Republicans taunted him that his son was dead meat.6

On December 1, 2003, during a radio interview with WKZOKalamazoo, Representative Nick Smith made the following additional statements with respect to the passage of the Medicare Prescription Drug Act: 7

They threatened—here’s what they did. They—they— 

they started out by offering the carrot. They know what’s 

important to every Member and what’s important to me is 

my family and my kids. And I term-limited myself, and so 

Bradley, my son, is running for Congress. And so the first 

offer was to give him $100,000-plus for his campaign and 

endorsements by national leadership. And—and I said, no, 

I’m going to stick to my guns on what I think is right for 

the constituents in my district. 

And so what they did then is come—come forth with sort 

of the stick. And they said, well, if you don’t change your 

vote—this is about 4 a.m., Saturday morning—then some 

of us are going to work to make sure your son doesn’t get 

to Congress. And that kind of personal attack is just sort 

of beyond what anybody should do. So I told them to get 

the heck out of there. And I might have used a different 

word besides ‘‘heck,’’ I don’t know. But it’s—it’s a tough 

situation when civility breaks down. 

On December 4, 2003, Representative Nick Smith issued another 

press release (Exhibit 8), this time stating that: 

7 

8 A press statement was issued by the Chairman and Ranking Minority Member on February 

4, 2004 announcing that informal fact-finding was initiated on December 8, 2003. 

I have received many inquiries about lobbying pressure 

on the Medicare vote that took place on November 21 and 

the morning of November 22. I talked to a lot of members 

and organizations about the bill before and during the 

vote. I think I made it clear that I opposed the legislation 

because it was not good fiscal policy. 

I want to make clear that no member of Congress made 

an offer of financial assistance for my son’s campaign in 

exchange for my vote on the Medicare bill. I was told that 

my vote could result in interested groups giving substantial and aggressive ‘‘support’’ and ‘‘endorsements.’’ No specific reference was made to money. 

Some members said they would work against Brad if I 

voted no. My son called and said, ‘‘I don’t want to go to 

Congress that way’’ and ‘‘Do the right thing.’’ 

The vote was taken in the middle of the night. People 

were frustrated and nerves were frayed on all sides. The 

lobbying effort on behalf of the legislation was intense. 

Anyone with information can bend my ear, but they can’t 

twist my arm. 

The lobbying from members was intense, but I want to 

be absolutely clear that I believe that no member violated 

any ethical rule in this episode. I see no need for an ethics 

investigation, let alone a criminal investigation. 

An article published by the Lansing State Journal on December 

5, 2003, reports on Representative Nick Smith’s press statement of 

December 4, 2003, and states that Representative Smith ‘‘appeared 

to backpedal [ ] on his allegation that he was offered a bribe in 

exchange for voting for major Medicare legislation.’’ Exhibit 9. 

However, the same article quotes Brad Smith, Representative 

Smith’s son and candidate to replace his father in Congress, as saying that on the evening before the vote on the legislation, he was 

told by his father that ‘‘interest groups and key Republicans’’ had 

offered ‘‘financial contributions and endorsements’’ for Brad Smith’s 

congressional campaign. 

On December 8, 2003, pursuant to Committee Rule 18(a), the 

Chairman and Ranking Minority Member of the Committee initiated informal fact-finding concerning the statements made by Representative Nick Smith as to communications he may have received 

linking his support for the Medicare Prescription Drug Act with 

support for the congressional candidacy of his son.8 In a letter to 

Representative Smith, he was asked to comment upon news accounts of communications to him regarding his vote on the Medicare Prescription Drug Act, as well as to respond to specific questions on this matter. Exhibit 10. 

By letter to the Committee December 17, 2003, Representative 

Smith responded to the Committee’s letter to him (Exhibit 11), 

stating that: 

8 

9See Exhibit 5. 

[T]he news report was incorrect. No House member 

made an offer of financial assistance to me for my son’s 

campaign in exchange for my vote. 

* * * * * 

Let me be very clear that the Robert Novak media report that a member told me that business interests would 

give $100,000 to my son’s congressional campaign in exchange for my vote on the Medicare bill is untrue. On the 

Friday evening before the vote on the bill started, a friend 

called and told me that if I voted for the bill my son’s congressional campaign would receive ‘‘substantial and aggressive support’’ or words very close to that. This person 

was neither a member of Congress nor a lobbyist. However, combined with members’ comments that there could 

be endorsements, business support and members coming to 

Michigan to campaign for my son, I deemed the statement 

credible. In my mind, I believed that this would mean tens 

of thousands, if not hundreds of thousands of dollars for 

my son’s campaign if I voted for the bill. 

Representative Smith also stated in his letter to the Committee 

that he did not provide the $100,000 figure to Robert Novak,9 but 

that ‘‘[u]nfortunately, a few days after reading his column, I repeated the same figure in a live radio interview on WKZO, from 

a cell phone while driving my car. Although I continue to believe 

Mr. Novak’s figure is in the ballpark of what my son’s campaign 

could have received, it was a mistake for me to repeat the $100,000 

figure.’’ He also stated that he ‘‘regard[ed] as credible the statements that my son’s campaign could receive substantial and aggressive support, including support from third parties. But I repeat, no member offered me, or my son, campaign money for my 

vote.’’ In apparent response to the Committee’s request for details 

about communications made to him regarding his vote on the Medicare Prescription Drug Act, he stated that ‘‘[e]ven though I do recall an overarching message that my son’s campaign could be affected by my vote, it would be unfair for me to try to reconstruct 

exactly the words that were said and who said them. I simply cannot do that with precision.’’ Exhibit 11. 

On December 23, 2003, the Washington Post published an article 

that described a gathering at the Hunan Dynasty restaurant that 

was held on November 21, 2003, the evening before the vote on the 

Medicare legislation. Exhibit 12. According to the article, Representative Smith reportedly spoke to several Republican Members 

regarding pressure on him to change his vote. The article reported 

that at least three other Members of Congress recall Representative Smith telling them of an offer of financial benefits for his son’s 

campaign if he voted in favor of the Medicare Prescription Drug 

Act. One of the Members mentioned in the Washington Post article 

is quoted as saying that Representative Smith told attendees at the 

gathering that ‘‘someone had said his son . . . would be the beneficiary if he would vote for the bill, up to the tune of about 

$100,000 . . . .’’ Exhibit 12 (Ellipses original). 

9 

10The letter from the Chairman and Ranking Minority Member of the Committee to Representative Smith further asked for specific details about Representative Smith’s communication 

with his ‘‘friend,’’ and also requested the identity of certain other individuals and other information about events reported in the Washington Post article dated December 23, 2003. Exhibit 14; 

see also Exhibit 12. As noted later in this Report, from testimony received during its inquiry 

from Representative Nick Smith and another source, the Investigative Subcommittee learned 

that the unnamed ‘‘friend’’ referenced in Representative Smith’s letter to the Committee dated 

December 17, 2003 was Jason Roe. Mr. Roe is presently chief of staff to Representative Tom 

Feeney. 

A Detroit News article published on February 12, 2004 references additional public comments by Representative Smith on 

this matter. According to the article, on February 11, 2004, Representative Smith stated that he was offered ‘‘aggressive and substantial’’ support for his son’s congressional campaign in connection 

with his vote on the Medicare Prescription Drug Act. Exhibit 13. 

By letter dated February 13, 2004, the Chairman and Ranking 

Minority Member of the Committee again contacted Representative 

Smith. Exhibit 14. The purpose of this letter was to obtain additional information from Representative Smith regarding the public 

allegations he had made. The letter referenced Representative 

Smith’s letter of December 17, 2003 to the Committee, and asked 

Representative Smith to identify the ‘‘friend’’ referred to in his letter to the Committee, which friend allegedly called Representative 

Smith and told him that his son’s campaign would receive ‘‘substantial and aggressive support’’ or words to that effect if Representative Smith voted for the Medicare Prescription Drug Act.10

Exhibits 14 and 11. In the letter to Representative Smith, the 

Chairman and Ranking Minority Member of the Committee communicated to Representative Smith that it considered the call to 

Representative Smith (as described in Representative Smith’s letter of December 17) ‘‘to be an extremely serious matter’’ and further advised Representative Smith that the events as described by 

Representative Smith ‘‘may implicate the Committee’s jurisdiction.’’ 

Exhibit 14. 

By letter from his counsel dated March 5, 2004, Representative 

Smith declined to provide the additional information requested by 

the Chairman and Ranking Minority Member of the Committee. In 

the letter, Representative Smith’s counsel stated that ‘‘[i]n his letter of December 17, Representative Smith confirmed to your Committee that, notwithstanding press reports characterizing some of 

the speech and debate as implying that financial support for his 

son’s Michigan congressional campaign could be affected by his 

vote, ‘no House member made an offer of financial assistance . . . 

for my son’s campaign in exchange for my vote.’ By this reply, Representative Smith reaffirms that recollection.’’ Exhibit 15 (Ellipses 

original). 

After having been unable to obtain full cooperation from Representative Nick Smith in obtaining facts and evidence related to 

the public allegations made by Representative Smith, and because 

the allegations—made in several different forums—called into 

question the integrity of the House and its legislative process, the 

Committee determined to establish an Investigative Subcommittee 

to inquire into this matter. The Investigative Subcommittee was established pursuant to a resolution adopted by the Committee on 

March 17, 2004 and in accordance with the House and Committee 

rules referenced in the resolution. In subsequent Investigative Subcommittee and Committee proceedings, the Investigative SubVerDate Aug 04 2004 08:49 Oct 06, 2004 Jkt 096212 PO 00000 Frm 00017 Fmt 6659 Sfmt 6602 E:\HR\OC\HR722.XXX HR722
10 

11The establishment of the Investigative Subcommittee was publicly announced by the Committee on March 17, 2004. The press statement announcing the establishment of the Investigative Subcommittee also announced ‘‘[a]t the conclusion of its inquiry, the investigative subcommittee is to report its findings, conclusions and recommendations to the full Committee,’’ 

and that ‘‘[a]nyone having first-hand knowledge of this matter is encouraged to contact the Committee office.’’ 

committee’s inquiry was referred to as the ‘‘Investigation of Certain 

Allegations Related to Voting on the Medicare Prescription Drug, 

Improvement, and Modernization Act of 2003.’’11

The resolution adopted by the Committee provides as follows: 

Whereas Representative Nick Smith has made public 

statements that he received communications linking support for the congressional candidacy of his son with Representative Smith’s vote on the Medicare Prescription 

Drug Improvement and Modernization Act of 2003; and 

Whereas pursuant to Committee Rule 18(a) the Chairman and Ranking Minority jointly engaged in informal 

fact-finding to gather additional information concerning 

these allegations; and 

Whereas the conduct of a Member, officer, or employee 

of the House, in connection with the aforementioned allegations, may violate the Code of Official Conduct or one or 

more law, rule, regulation, or other standard of conduct 

applicable to the conduct of a Member, officer, or employee 

of the House in the performance of his or her duties or the 

discharge of his or her responsibilities; and 

Whereas the Committee has authority to investigate 

such conduct pursuant to House Rule XI, clauses 3(a)(2) 

and (3)(b)(2), and pursuant to Committee Rules 14(a)(3) 

and 18; and 

Whereas the Committee has determined pursuant to 

Committee Rule 1(c) that the interests of justice require 

the adoption of special procedures in order for the Committee to carry out its investigative and enforcement responsibilities with respect to the aforementioned allegations; 

It is hereby resolved by the Committee 

1. That an Investigative Subcommittee be established 

with jurisdiction to conduct a full and complete inquiry 

and investigation into alleged communications received by 

Representative Nick Smith linking support for the congressional candidacy of his son with Representative Smith’s 

vote on the Medicare Prescription Drug Improvement and 

Modernization Act of 2003; 

2. That the scope of the inquiry may extend to any matters related to the jurisdiction of the Investigative Subcommittee as set forth in this resolution; 

3. That the Investigative Subcommittee is authorized to 

advise the public at large that it is interested in receiving 

information and testimony from any person with first-hand 

information regarding communications received by Representative Nick Smith linking support for the congressional candidacy of his son with Representative Smith’s 

vote on the Medicare Prescription Drug Improvement and 

Modernization Act of 2003; 

11 

4. That at the conclusion of its inquiry, the Investigative 

Subcommittee shall report to the Committee its findings, 

conclusions, and recommendations; 

5. That the Members of the Investigative Subcommittee 

shall be designated pursuant to Committee Rule 19(a); 

6. That Committee Rules 7 (Confidentiality), 8(a) (Subcommittees—General Policy and Structure), 9 (Quorums 

and Member Disqualification), and 10 (Vote Requirements) 

are fully applicable to this inquiry by the Investigative 

Subcommittee; 

7. That the Investigative Subcommittee is authorized to 

obtain evidence and relevant information by the means 

and in the manner set forth in Committee Rules 19(b)–(c), 

except as those rules apply to respondents; 

8. That witnesses before the Investigative Subcommittee 

shall be furnished with a copy of the special procedures for 

this inquiry (as set forth in this resolution), as well as accorded the rights set forth in Committee Rules 26(k)–(o); 

9. That the Committee intends that all witnesses who 

provide testimony before the Investigative Subcommittee 

should be sequestered and should not communicate with 

any other witnesses regarding any aspect of their testimony unless the Investigative Subcommittee permits otherwise; 

10. That at any point during its inquiry, or at the conclusion of its inquiry, the jurisdiction of the Investigative 

Subcommittee may be expanded in accordance with the requirements of Committee Rule 19(d) if the Investigative 

Subcommittee obtains information indicating that a Member, officer, or employee of the House may have committed 

a violation of the Code of Official Conduct or any law, rule, 

regulation, or other standard of conduct applicable to the 

conduct of such Member, officer, or employee in the performance of his or her duties or the discharge of his or her 

responsibilities. If the scope of jurisdiction of the Investigative Subcommittee is expanded to investigate the conduct 

of an identified Member, officer, or employee of the House, 

the inquiry regarding the identified Member, officer, or 

employee shall proceed before the same Investigative Subcommittee and in accordance with all the Rules of the 

Committee regarding an inquiry involving a respondent; 

11. That except as otherwise provided in this Resolution, 

the Rules of the Committee shall be applicable in this matter and will be interpreted by the Investigative Subcommittee and the Committee in a manner not inconsistent with this Resolution. 

In a public statement issued on March 25, 2004, the Chairman 

and Ranking Minority Member of the Committee announced that 

Representative Kenny C. Hulshof would serve as Chairman of the 

Investigative Subcommittee, Representative Michael F. Doyle 

would serve as its Ranking Minority Member, and the other two 

members of the Investigative Subcommittee would be Representative John B. Shadegg and Representative William D. Delahunt. 

12 

B. INVESTIGATIVE PROCESS

The Investigative Subcommittee was established on March 17, 

2004, and after its members were designated on March 25, 2004, 

the Investigative Subcommittee investigated this matter until early 

September 2004. The Investigative Subcommittee interviewed and 

deposed witnesses, and authorized the issuance of subpoenas for 

testimony and documents. The vast majority of witnesses that provided sworn testimony to the Investigative Subcommittee or consented to interviews with Investigative Subcommittee counsel did 

so on a voluntary basis. 

The most critical evidence procured by the Investigative Subcommittee was the approximately 1400 pages of transcribed sworn 

testimony and witness statements procured during proceedings before the Investigative Subcommittee or during interviews with Investigative Subcommittee counsel. In addition, approximately two 

thousand pages of documents were supplied to the Investigative 

Subcommittee pursuant to subpoena. Documents were obtained 

from Representative Nick Smith in both his personal and official 

capacities. Documents were also obtained from Brad Smith, as well 

as from Members of the House and House employees. In addition 

to subpoenaed materials, documents were also voluntarily supplied 

to the Investigative Subcommittee from several sources. The Investigative Subcommittee also obtained and reviewed the C-Span videotape of the vote on H.R. 1 on November 22, 2003, and examined 

publicly-available records maintained by the Federal Election Commission. 

The documentary materials furnished by witnesses included, but 

were not limited to, personal, official, and campaign-related written 

correspondence and records in both final and draft form, telephone 

records (including records of cellular phone communications), official and campaign-related e-mail, personal calendars or records, 

and other records memorializing meetings on critical days or otherwise related to consideration of Medicare legislation by Members of 

the House. 

During its inquiry, the Investigative Subcommittee formally deposed 17 Members of the House regarding matters within its jurisdiction, including Representative Nick Smith, the Chairs of House 

Committees and Subcommittees, Speaker J. Dennis Hastert, and 

Majority Leader Tom DeLay. A House employee (Jason Roe) and 

an individual not affiliated with the House (Brad Smith) were also 

deposed by the Investigative Subcommittee. Each of the witnesses 

who were deposed by the Investigative Subcommittee was placed 

under oath. See Committee Rule 19(b)(6). At least two Members of 

the Investigative Subcommittee were present at all times for all 

sworn depositions as required by Committee rules, although in fact, 

all four Members were present for a majority of the depositions before the Investigative Subcommittee. In addition, as authorized by 

the Investigative Subcommittee, counsel for the Investigative Subcommittee interviewed ten other individuals. Each of the interviews was transcribed by a stenographer with the consent of the 

individual being interviewed. Answers (made under penalty of perjury) to written questions posed by the Investigative Subcommittee 

13 

12 Early in its inquiry, the Investigative Subcommittee also sought information from the White 

House regarding a meeting between a White House official and Representative Nick Smith in 

Representative Smith’s congressional office prior to the vote on the Medicare Prescription Drug 

Act. The White House would not make the individual available to be interviewed by Investigative Subcommittee counsel, and further declined to respond to a written request for information. 

During the course of its inquiry, the Investigative Subcommittee did not find any link between 

the allegations made by Representative Nick Smith and any communication or other action undertaken by anyone employed within the White House. For this reason, the Investigative Subcommittee did not endeavor further to obtain information from the White House regarding this 

matter. 13The Investigative Subcommittee similarly appreciates the cooperation of the many House 

employees that consented to be interviewed by Investigative Subcommittee counsel. 14Witnesses who provided statements during interviews with Investigative Subcommittee 

counsel were given a similar admonishment. 

were provided by the Honorable Tommy G. Thompson, Secretary of 

Health and Human Services.12 Exhibits 16 and 17. 

The Investigative Subcommittee notes the cooperation of Members of the House with the Investigative Subcommittee’s inquiry. 

No Member of the House that was asked to provide voluntary testimony declined to do so; indeed, no Member who testified voluntarily offered any resistance to testifying or any objection to questions posed to them. The Investigative Subcommittee appreciates 

the cooperation of the Members who voluntarily provided testimony 

to it, and who rearranged their official schedules—often on short 

notice—to accommodate the needs of the Investigative Subcommittee.13 The only Member of the House subpoenaed to give 

testimony was Representative Nick Smith. 

As noted in the resolution it adopted on March 17, 2004, the 

Committee determined, pursuant to Committee Rule 1(c), to adopt 

special procedures for this inquiry. One of the special procedures 

included in the resolution provides that unless the Investigative 

Subcommittee permitted otherwise, witnesses who provided testimony to the Investigative Subcommittee should be sequestered 

from other witnesses. The purpose of this provision was to discourage communications between witnesses before the Investigative 

Subcommittee regarding their testimony, thereby maintaining the 

confidentiality and reliability of information provided by and asked 

of witnesses during this inquiry. 

The Investigative Subcommittee took appropriate measures to insure witnesses complied with the sequestration provision in the 

Committee’s resolution. Not only was each witness provided with 

a copy of the resolution, but accompanying correspondence to witnesses noted the resolution’s sequestration provision and further 

advised all witnesses of the intention of the Investigative Subcommittee to ‘‘inquire on the record’’ regarding witnesses’’ compliance with the instruction that communications with the Investigative Subcommittee be kept confidential.14 In addition, every proceeding before the Investigative Subcommittee or its counsel began 

with an ‘‘on the record’’ inquiry regarding communications a witness may have had related to his or her contact with the Investigative Subcommittee, and every proceeding concluded with an admonishment that the witness should continue to comply with the 

resolution’s sequestration provision. It was the position of the Investigative Subcommittee that Members and employees of the 

House were obligated to comply with the sequestration rule and 

not discuss any aspect of their testimony with anyone other than 

their counsel, and that failure to comply with this request could 

14 

15 In the view of the Investigative Subcommittee, private counsel engaged to represent Members and staff during proceedings before the Investigative Subcommittee were also required to 

comply with the sequestration rule and not discuss any aspect of the proceedings they attended 

with any other person. See Committee Rule 26(m). 16 A recent report of the Committee raised a concern over multirepresentation of witnesses by 

the same attorney. See In the Matter of Representative Earl F. Hilliard, H. Rep. 107–130, 107th 

Cong., 1st Sess. 98 (July 10, 2001) (describing multirepresentation of witnesses as ‘‘inimical to 

the fact-finding process’’). The Investigative Subcommittee in the instant matter did encounter 

instances of representation of more than one witness by the same attorney. In these instances, 

the Investigative Subcommittee found no indication that the attorney had disclosed the testimony of a witness with any other witness. Nonetheless, the Investigative Subcommittee believes 

that multirepresentation of witnesses by the same attorney poses a substantial risk to the integrity of an investigation, and if necessitated by the circumstances it would have considered steps 

to limit or prohibit the same attorney from attending the testimony of more than one witness. 17Transcript of Interview of Kurt Schmautz, Chief of Staff to Representative Nick Smith, at 

pages 7–11 (hereinafter Schmautz Int.) 18See, e.g., Deposition of Representative Nick Smith (hereinafter Rep. N. Smith Dep.) at pages 

166–167. 19See, e.g., Deposition of Representative Tom Reynolds (hereinafter Rep. Reynolds Dep.) at 

page 10; Deposition of Representative Jeff Flake (hereinafter Rep. Flake Dep.) at pages 19–20; 

Deposition of Representative Tom Tancredo (hereinafter Rep. Tancredo Dep.) at page 16; Deposition of Representative Tom Feeney (hereinafter Rep. Feeney Dep.) at pages 9–10). 

form the basis of disciplinary proceedings in the House in accordance with House and Committee rules.15

The Investigative Subcommittee encountered no violations of the 

sequestration provision contained in the resolution. Further, it 

found the provision’s inclusion in the resolution to have been useful 

in maintaining the confidentiality of the Investigative Subcommittee’s activities, and in the preventing orchestration or coordination 

of testimony by witnesses. The Investigative Subcommittee recommends that a ‘‘sequestration of witnesses’’ requirement be implemented in future inquires, whether by Committee policy, rule, or 

resolution.16

III. NARRATIVE SUMMARY OF EVIDENCE

A. EVENTS PRECEDING THE VOTE ON THE MEDICARE PRESCRIPTION

DRUG ACT

1. Telephone Conversations Between Representative Nick Smith and 

a Former Member of his Congressional Staff 

By Friday, November 21, 2003, the day preceding the House vote 

on the Conference version of the Medicare bill, Representative Nick 

Smith was expected to vote against the legislation. Representative 

Smith had voted against the House version of the legislation earlier 

in the year and had, at some point prior to November 21, communicated to his party’s leadership his intention to vote against the 

final version of the bill. Earlier in the week, lobbyists from industry and a White House employee had visited Representative Smith 

in his congressional office and had presented him with arguments 

in favor of the Medicare legislation.17

Representative Smith plans to retire at the end of the 108th Congress and his son, Brad Smith, had formally announced his candidacy for his father’s seat in Congress in October 2003. Even prior 

to his formal announcement, it was known among many Members 

of Congress that Brad Smith would be running for his father’s seat. 

It was apparent in his testimony before the Investigative Subcommittee, that Representative Smith wanted his son to be successful in his campaign.18 Several other Members who testified before the Investigative Subcommittee noted that Representative 

Smith had sought their support for Brad Smith’s campaign.19

15 

20See Rep. N. Smith Dep. at page 18. 21 Relevant portions of Representative Smith’s diary calendar for 2003 were obtained by the 

Investigative Subcommittee pursuant to a subpoena for documents issued to Representative 

Smith. See Exhibit 19. Representative Smith testified that he used his diary calendar to make 

notes of certain events that occurred in connection with the Medicare vote after his allegations 

started receiving media attention. He told the Investigative Subcommittee that the notes in the 

diary calendar were made a week to ten days after the events occurred and were not made contemporaneously with the events. See Rep. N. Smith Dep. at page 16. 22See Rep. N. Smith Dep. at page 18. In his notes, Representative Smith wrote: ‘‘Jason Roe 

called at 5:30 and said Business would contribute ‘heavy’ to Brad’s campaign—IF—6:30 ALSO— 

NRCC would endorse Brad if I would vote yes—said no—.’’ (See Exhibit 19) Representative 

Smith told the Investigative Subcommittee that the internal quotation marks around the word 

‘‘heavy’’ in his notes were not meant to indicate that Mr. Roe had actually used the word in 

their conversation. See Rep. N. Smith Dep. at page 17. 

Sometime during the late afternoon on Friday November 21, 

prior to a Republican Conference meeting scheduled for approximately 7:00 p.m., Representative Smith received at least one call 

from a former staff member, Jason Roe. Mr. Roe had been employed as the Press Secretary in Representative Smith’s congressional office from February through August 1999 and then again 

from July through December of 2001. In addition, during testimony 

before the Investigative Subcommittee, Representative Smith described Jason Roe as a friend from his congressional district whose 

family Representative Smith had known for 40 years. Representative Smith told the Investigative Subcommittee that Jason Roe had 

‘‘been supportive of [his son’s] campaign.’’ 20 Mr. Roe is currently 

Chief of Staff to Representative Tom Feeney. 

Jason Roe testified that he remembers speaking with Representative Smith once during the afternoon or evening of Friday November 21 but concedes that he may have spoken with him more than 

once that day. According to notes Representative Smith made in 

his diary calendar approximately seven to ten days later, Mr. Roe 

called him at 5:30 p.m. on November 21 and then again at 6:30 

that evening.21

Both Representative Smith and Mr. Roe testified that their conversation or conversations on November 21 were brief. According to 

Representative Smith, during their conversations, Mr. Roe told him 

that there could be substantial support for Brad Smith’s campaign 

if Representative Smith voted in favor of the Medicare bill and that 

he understood from a source close to Majority Leader Tom DeLay’s 

office that Brad Smith could get a National Republican Congressional Committee (NRCC) endorsement if Representative Smith 

voted in favor of the legislation.22

Jason Roe denied referring to a source close to the Majority 

Leader’s office during his conversation, or conversations, with Representative Smith. He told the Investigative Subcommittee that he 

called Representative Smith because throughout the day on November 21, he had been hearing about pressure that was being put 

on Republicans who intended to vote against the Medicare bill and 

he wanted to discuss the vote and Representative Smith’s own circumstances with him. Mr. Roe testified: 

There had been—. . . [during] the course of the day, talking to various lobbyists and Mr. Feeney just hearing about 

people switching votes and the pressure that was being applied to some of the conservative holdouts on the legislation. . . .—[A]fter hearing a number of these stories . . . 

I just more out of curiosity gave him a call and asked him 

what he thought he was going to do. . . . And just based 

16 

23See Deposition of Jason Roe (hereinafter Roe Dep.) at pages 39–40. 24See Roe Dep. at pages 44–45. 25See Transcript of Interview with Dan Flynn (hereinafter Flynn Int.) at page 28–29. 26See Flynn Int. at pages 45–46. 27See Deposition of Jason Roe (Roe II) at pages 4–6. The Investigative Subcommittee does 

not find it necessary to determine whether the Majority Leader’s Deputy Chief of Staff called 

Mr. Roe to ask about Brad Smith’s primary. Mr. Flynn did not recall discussing any endorsements with Mr. Roe and did not recall asking or instructing Mr. Roe to call Representative 

Smith to relay any offers or information. If a conversation related to Brad Smith’s campaign 

did occur between Mr. Roe and Mr. Flynn prior to the Medicare vote, and was in whole or in 

part the motivation behind Mr. Roe’s decision to call Representative Smith, without a request 

or an instruction to him to convey an offer, Mr. Roe’s conversation with Representative Smith 

remained mere speculation. 

on people telling me people were switching votes, I called 

him and asked him about that; and we had a brief, maybe 

four- or five-minute conversation, in my recollection, about 

his vote.23

Mr. Roe told the Investigative Subcommittee that he and Representative Smith engaged in a discussion about hypothetical pros 

and cons of voting for or against the legislation. Mr. Roe told the 

Investigative Subcommittee that everything he might have said in 

that conversation, including any references to substantial support 

or endorsements for Brad Smith, were hypothetical. 

Mr. Roe told the Investigative Subcommittee: 

And [Representative Smith] said, you know, kind of 

thinking out loud . . . what do you think? . . . Should I 

stick to it? . . . So it was more or less talking about what 

he was going to do and what the repercussions were going 

to be of him voting no as it applied to Brad. 

* * * * * 

. . . I think we probably talked about conservatives are 

going to probably rally to you if you vote no. There is [sic] 

probably benefits from the House leadership that could 

help you for Brad, but, you know, you are going to alienate 

the conservative base in Michigan. . . . So just I guess 

kind of generally how does this vote affect Brad as it relates to the campaign.24

A Member of the Majority Leader’s staff, Deputy Chief of Staff 

Dan Flynn, stated in an interview conducted by staff counsel to the 

Investigative Subcommittee that he called Mr. Roe on Friday November 21 seeking information on Representative Smith’s son’s primary race. Mr. Flynn said that because Mr. Roe had ‘‘previously 

. . . worked for Nick Smith’’ he believed Mr. Roe would know 

‘‘more about the primary situation’’ than Mr. Flynn himself knew.25

However, Mr. Flynn did not recall telling Mr. Roe that the Majority 

Leader would or might take any position on the primary and does 

not believe he asked Mr. Roe to call Representative Smith regarding Representative Smith’s vote on the Medicare legislation. Mr. 

Flynn also said that he did not recall discussing an NRCC endorsement for Brad Smith with Mr. Roe or anyone else.26

Mr. Roe testified that the subject of the Michigan Seventh District primary never came up during the multiple conversations he 

had with Mr. Flynn prior to the vote on the Medicare legislation. 

He testified that he spoke with Mr. Flynn several times prior to the 

vote, but that their conversations always focused on Mr. Flynn’s attempts to persuade Representative Tom Feeney to vote in favor of 

the bill.27

17 

28See Roe Dep. at pages 50–51, 53. 29 Under questioning from a Member of the Investigative Subcommittee, Representative Smith 

testified: 

Q: On a continuum between * * * personal advice and * * * offering * * * a bribe 

from somebody else, did you have a sense for which of these it was? 

A: Probably closer to—my impression at that time was closer to gossip. 

Q: Gossip about what might happen—— 

A: Yeah. 

Q: —or what things he heard? 

A: Correct. 

Q: Without any greater specificity than that? 

A: Correct. 

See Rep. N. Smith at pages 24–25. 30See Rep. Reynolds Dep. at pages 7–8, 19. 31See Roe Dep. at page 51. 

Mr. Roe told the Investigative Subcommittee that he was not trying to influence Representative Smith’s vote by calling him and he 

further testified that he did not call Representative Smith on behalf of any other person or entity.28 Representative Smith testified 

that Mr. Roe had not mentioned calling on behalf of any other person or entity. Representative Smith and Representative Tom 

Feeney, whom Mr. Roe had informed of his conversation with Representative Smith shortly after it occurred, told the Investigative 

Subcommittee that they did not believe Mr. Roe was trying to influence Representative Smith’s vote. 

Representative Smith told the Investigative Subcommittee that 

he did not regard the phone calls from Jason Roe as important immediately after speaking with his former staff member. He assumed what Mr. Roe was communicating was in the nature of 

rumor and, at that time, he did not give a lot of credibility to 

whether the things they discussed were actual fact or mere speculation. Representative Smith told the Investigative Subcommittee 

that his impression at that time was that what Mr. Roe was saying 

was closer to gossip than to hard information.29

The Investigative Subcommittee found no evidence that there 

was any consideration given to having the NRCC endorse Representative Smith’s son in his primary race. Individuals appearing 

before the Investigative Subcommittee who were asked about 

whether they had knowledge of an offer of an NRCC endorsement 

expressed the view that such an endorsement would have been unusual and unlikely in a closely contested Republican primary involving five candidates, such as the race in the Michigan Seventh 

District primary. Representative Tom Reynolds, Chairman of the 

NRCC, testified that any consideration of an offer of endorsement 

in any primary would have come to his attention at some point. He 

said that there had been no consideration of an endorsement for 

Brad Smith in the Michigan District Seven primary and that he 

had no knowledge of an offer of an endorsement being made.30

Jason Roe who was, according to Representative Smith, the 

initiator of the discussion about a possible NRCC endorsement, told 

the Investigative Subcommittee that he would not have told Representative Smith that Brad Smith would receive an NRCC endorsement if Representative Smith voted for the Medicare bill and 

that he had ‘‘no authority to offer the NRCC to anybody.’’ 31 Representative Smith also told the Investigative Subcommittee that he 

18 

32See Rep. N. Smith Dep. at page 18. 33See Rep. N. Smith at page 14. See also Exhibit 22. 34See Exhibit 20. 35See Rep. N. Smith Dep. at page 31. 36 Representative Smith recorded the statement in notes he made in his diary calendar approximately seven to ten days after the vote on the Medicare legislation. (See Exhibit 19) In 

those notes, Representative Smith wrote: ‘‘[T.D.] said he would personally endorse Brad. (I 

teared up).’’ In the line immediately preceding this statement in Representative Smith’s notes, 

he wrote ‘‘More Pressure—1:30 AM.’’ (See Exhibit 19 ) Representative Smith testified that his 

reference to pressure at 1:30 a.m. did not refer to the Majority Leader’s offer of an endorsement. 

See Rep. N. Smith Dep. at pages 32, 96. 37See Rep. N. Smith Dep. at page 160. 38See Rep. N. Smith Dep. at page 33. 

thought it would have been ‘‘strange’’ 32 for the NRCC to have 

made an endorsement in the primary. 

Based on Representative Smith’s schedule for November 21 and 

his recollection of the events of that afternoon and evening, some 

time after he spoke with his former staff member, he attended the 

Republican Conference meeting. Representative Smith’s recollection is that the Medicare legislation was the main topic of discussion at the conference meeting. He testified that no one directly attempted to influence his vote during the Conference meeting.33

2. Conversation with Majority Leader Tom DeLay 

The record of roll call votes for November 21, 2003 indicates 

there were several votes called between 7:09 and 11:37 that 

evening.34 According to Representative Smith, on the House floor, 

during one of the votes that evening, Majority Leader DeLay approached him and told him that he would personally endorse Representative Smith’s son in the Republican primary in Michigan District Seven if Representative Smith voted in favor of the Medicare 

legislation. In his testimony before the Investigative Subcommittee, 

Representative Smith stated that the Majority Leader said: ‘‘I will 

personally endorse your son. That’s my last offer.’’ 35 In handwritten notes in his diary calendar, Representative Smith 

wrote that he ‘‘teared up’’ in response to the Majority Leader’s 

statement.36

Representative Smith testified that the exchange lasted about 

eight seconds. He recalls saying nothing to the Majority Leader in 

response, other than to perhaps thank him for the offer. Representative Smith told the Investigative Subcommittee that, although the 

Majority Leader used the phrase ‘‘final offer’’ or ‘‘last offer’’ in conveying the offer of endorsement, he had not in fact made previous 

offers of support for Representative Smith’s son’s campaign or offers of any other inducements to persuade Representative Smith to 

vote in favor of the Medicare legislation.37

According to Representative Smith, Representative Lamar Smith 

was sitting near him when the Majority Leader made his offer to 

personally endorse Representative Smith’s son and witnessed the 

exchange.38 However, Representative Lamar Smith told the Investigative Subcommittee that he did not recall witnessing this interaction between the Majority Leader and Representative Smith. 

Rather, Representative Lamar Smith testified that, while the Medicare vote was open during the wee hours of Saturday November 22, 

he saw Representative Nick Smith sitting by himself. As part of his 

opening statement to the Investigative Subcommittee, Representative Lamar Smith testified as follows: 

19 

39See Deposition of Representative Lamar Smith (hereinafter Rep. L. Smith Dep.) at pages 

3–4. The Majority Leader testified that he did not remember Representative Lamar Smith sitting next to Representative Nick Smith during his conversation with Nick Smith. The Majority 

Leader testified that ‘‘there were people sitting next to [Representative Nick Smith] but I 

couldn’t tell you who they were.’’ See Deposition of Majority Leader Tom DeLay (hereinafter Majority Leader Dep.) at pages 34–35. 40See Rep. N. Smith Dep. at pages 43, 46. 41See Majority Leader Dep. at page 35. 42See Majority Leader Dep. at page 28–29. 43The Majority Leader told the Investigative Subcommittee that he recalls speaking with Representative Smith twice, both times while the vote on the Medicare legislation was open. He 

was seen engaged in conversation with Representative Smith on the House floor while the vote 

was open. See Deposition of Representative Randy ‘‘Duke’’ Cunningham (hereinafter Rep. 

Cunningham Dep.) at pages 12, 14. 

* * * Regarding the situation with Nick Smith, I did not 

hear anyone say to him anything about his vote or his 

son’s candidacy for Congress. 

At one point during the evening, I saw Nick sitting by 

himself. It was general knowledge that his vote was considered important to passage of the Medicare bill. I sat 

next to him and asked him what he was thinking. He replied that he was told that his son would be endorsed if 

he voted for the legislation. He did not mention who told 

him that. The exchange was brief and it seemed to me that 

the conversation lasted less than a minute.39

Representative Nick Smith told the Investigative Subcommittee 

that the Majority Leader did not say he would provide money to 

his son’s campaign. However, during his testimony Representative 

Smith stated that he would have associated the offer of an endorsement with willingness to provide financial assistance in the form 

of contributions to his son’s campaign.40

Majority Leader DeLay’s account of his conversation with Representative Nick Smith differs in some respects from Representative Smith’s testimony, but is materially consistent. The Majority 

Leader testified that he did say words to the effect of: ‘‘I will personally endorse your son. That’s my final offer’’ to Representative 

Smith in connection with his efforts to persuade him to vote in 

favor of the Medicare legislation.41 However, the Majority Leader 

does not recall speaking with Representative Smith regarding the 

legislation before the time that the Medicare vote was open. 

Majority Leader DeLay told the Investigative Subcommittee that 

he does not believe he would have spoken to Representative Smith 

earlier than that because he did not believe that Representative 

Smith was open to persuasion to change his vote. Attempting to 

persuade Representative Smith to change his vote prior to the time 

that the vote was open would therefore have been, in the Majority 

Leader’s view, an inefficient use of the time he had available to 

persuade others who might be willing to vote in favor of the bill. 

Majority Leader DeLay told the Investigative Subcommittee that, 

in his recollection: ‘‘I might have been asked, but I didn’t before the 

vote talk to Nick Smith, because I knew he was a no, and there 

was a waste of my time.’’ 42 Nonetheless, the Majority Leader said 

that it was possible he spoke to Representative Smith earlier than 

the time during which the vote on the Medicare legislation was 

open.43

The Majority Leader told the Investigative Subcommittee that 

someone, he does not recall who, told him at some point between 

late on Friday November 21 and the time of the vote on the MediVerDate Aug 04 2004 08:49 Oct 06, 2004 Jkt 096212 PO 00000 Frm 00027 Fmt 6659 Sfmt 6602 E:\HR\OC\HR722.XXX HR722
20 

44See Majority Leader Dep. at page 31. 45 The Majority Leader’s Deputy Chief of Staff, Dan Flynn, indicated that late on November 

21, prior to the Medicare vote and in the course of discussing various Members’ anticipated 

votes on the legislation, he mentioned to the Majority Leader that several months earlier, a 

member of Representative Nick Smith’s staff had asked him whether the Majority Leader would 

consider endorsing Brad Smith. Mr. Flynn stated that he believed it was possible that the offer 

of an endorsement for his son might persuade Representative Smith to vote in favor of the legislation. (See Flynn Int. at pages 15–17). However, he never learned whether the Majority Leader 

had used the information he provided in this way. (See Flynn Int. at pages 20–21.) 

The Majority Leader’s Chief of Staff, Tim Berry, stated in an interview with Subcommittee 

counsel that, although he recalled that Mr. Flynn mentioned the inquiry about an endorsement 

for Brad Smith during the course of a discussion about various Members’ anticipated votes, the 

Majority Leader was not present when Mr. Flynn raised this point. (See Transcript of Interview 

of Tim Berry (hereinafter Berry Int.) at pages 37–39). 

During an interview with Investigative Subcommittee counsel, Brett Shogren, the Majority 

Leader’s Senior Advisor and Director of National Security Policy, said that he remembered the 

subject of an endorsement for Representative Smith’s son coming up during the course of discussion about the Medicare vote that occurred during the evening or night preceding the vote. Mr. 

Shogren remembered the remark being made in the midst of a great deal of activity and discussion about the vote in the Majority Leader’s office. Mr. Shogren remembered the Majority Leader being present when the remark was made. He did not remember who made the remark and 

did not himself discuss the issue with the Majority Leader. (See Transcript of Interview of Brett 

Shogren (hereinafter Shogren Int.) at pages 15–18; 20, 23–24.) 46See Majority Leader Dep. at page 31. 47See Majority Leader Dep. at page 31. 48Majority Leader DeLay told the Investigative Subcommittee that in past dealings with Representative Smith, he had learned that attempts to persuade him to reconsider his positions on 

legislative issues could lead to extensive and lengthy discussions. The Majority Leader was leery 

of getting caught up in such an extended discussion when he was trying to reach and persuade 

as many Members as possible. See Majority Leader Dep. at pages 27–29; 31, 35. 49See Majority Leader Dep. at page 32. 50See Majority Leader Dep. at page 20. 51See Majority Leader Dep. at pages 20, 24. 52See Majority Leader Dep. at page 44. 

care legislation, that Representative Smith was a ‘‘gettable’’ 44

vote.45 The Majority Leader did not believe the assessment of Representative Smith as a ‘‘gettable vote’’ but he nonetheless approached Representative Smith and asked him whether he would 

vote with the majority. Majority Leader DeLay’s recollection is that 

Representative Smith’s response to him was ‘‘Well, maybe.’’ 46 They 

began to discuss the merits of the bill and the Majority Leader believed, based on past experience with Representative Smith, that 

he would be ‘‘stuck’’ 47 talking to him for a lengthy period of time.48

According to Majority Leader DeLay, during their conversation, 

Representative Smith himself first raised the subject of his son’s 

campaign. The Majority Leader believed that by doing so, Representative Smith was ‘‘fishing to see what I would say’’ in response.49 He believed Representative Smith was looking for an 

offer of an endorsement from the Majority Leader for his son. Majority Leader DeLay testified that Representative Smith had several weeks or months prior to the Medicare vote approached him 

about an endorsement and support for his son.50 The Majority 

Leader declined Representative Smith’s request at that time, with 

the stated reason to Representative Smith being that he rarely provides endorsements in primaries.51

Majority Leader DeLay indicated that at some point during their 

conversation on the House floor, he made the offer of a personal endorsement for Representative Smith’s son. Although the Majority 

Leader used the phrase ‘‘final offer,’’ he testified that he used it as 

a way to end his conversation with Representative Smith and not 

because he had previously made other offers to endorse or otherwise support Representative Smith’s son.52

When asked by a Member of the Investigative Subcommittee 

what Representative Smith’s response had been to his offer, the 

21 

53See Majority Leader Dep. at page 36. 54See Majority Leader Dep. at page 49. 55See Rep. N. Smith Dep. at pages 31–32; 113–116. 56See Exhibit 21. 57See Rep. N. Smith Dep. at page 105. 58See Rep. N. Smith Dep. at page 105. 

Majority Leader testified: ‘‘I seem to remember it was, ‘That’s not 

good enough,’ something like that. And then he goes off . . . into 

a diatribe about how bad this bill is.’’ 53 The Majority Leader told 

the Investigative Subcommittee that if Representative Smith had 

changed his mind and voted in favor of the legislation, he would 

have made good on his promise and endorsed Brad Smith.54

According to Representative Smith, the Majority Leader’s offer of 

an endorsement for his son caused him to lend more credence to 

the comments his former staff member had made during their telephone conversations earlier that day. He told the Investigative 

Subcommittee that based on the combination of his interaction 

with the Majority Leader and his conversations with his former 

staff member, he came to believe his son’s candidacy could be significantly impacted by his vote on the Medicare Prescription Drug 

Act. Representative Smith therefore decided to try to reach his son 

to talk to him before the vote on the Medicare legislation.55

3. Representative Smith’s Telephone Conversation with Brad Smith 

Representative Smith made at least one or two attempts to telephone his son and eventually left a voice message asking his son 

to call him. Brad Smith returned his father’s call, leaving him a 

message on the answering machine in his Washington apartment 

urging him to maintain his resolve to vote against the Medicare 

bill. According to a transcript later made of Brad Smith’s voice 

message on Representative Smith’s answering machine, the message was recorded at 8:49 p.m. on Friday November 21. According 

to the transcription, Brad Smith left the following message on his 

father’s answering machine at that date and time: 

Hi, Dad. It’s Brad calling . . . about 10 to 8. I’m sorry 

I missed your call. I left you a message on your cell. Ah, 

it’s about 10 to 9, rather. I was at a fundraiser. I really 

hope that you pick this up . . . and that you don’t sway 

from your convictions and support the Medicare bill. Who 

cares what they say about me. This is our country we’re 

talking about . . . and your grandchildren’s future. So, 

please stick to your guns. Thanks, bye.56

Representative Smith was not able to produce the original tape 

of his son’s message to the Investigative Subcommittee. He testified 

that he had his son’s message transcribed because he wanted to 

save it.57 When asked why he wanted to save the message, Representative Smith said: ‘‘I don’t know. To put in my memoirs or put 

in Brad’s memoirs or whatever.’’ 58 Representative Smith played 

the tape of the message for other people, including visitors to his 

congressional office and members of the Republican Study Committee. 

Representative Smith indicated that he would not have voted in 

favor of the Medicare legislation in order to benefit his son’s campaign, even if his son had asked him to do so. He said that he 

called his son for two reasons; because he wanted his son to know 

22 

59See Rep. N. Smith Dep. at page 96. 60 Brad Smith testified before the Investigative Subcommittee that in response to a message 

from his father on the Friday evening before the vote on the Medicare Prescription Drug Act, 

he 

[T]ried to call Dad back several times at his apartment, at his office, and on his cell 

phone, and I left a message at his apartment saying that I wanted him to stick to his 

guns and not change his vote. 

At about 10 o’clock that night, I was in a checkout line in a grocery store and my 

cell phone rang. Dad was on his way to a Chinese restaurant, and he was calling to 

check in. He said he was with a bunch of people who were getting out from the heat 

of the Chamber, and he basically confirmed what Mom told me, that there were people 

that were ready to give substantial support to my campaign if he voted for the Medicare 

bill. I told him that it was a terrible bill, that I was quite expressive and animated in 

my opinions on the bill, and told him that he should not do it and certainly not because 

of me. 

See Deposition of Brad Smith (hereinafter B. Smith Dep.) at pages 6–7. 61The gathering had originally been scheduled for 8:15 p.m., according to Representative 

Smith’s schedule. (See Exhibit 22) However, it was delayed to a later start because of votes and 

the GOP conference meeting. 62 Both of these individuals were interviewed by staff counsel to the Investigative Subcommittee in this matter. 63 According to Brad Smith, the Saturday afternoon after the Medicare vote, his father also 

told him that he had been told by a former staff member that the ‘‘NRCC would look to get 

involved in my primary race and get behind me.’’ See B. Smith Dep. at pages 8–9. Brad Smith 

also testified that his father told him that afternoon that the former staff member had told him 

‘‘what it might be like down here’’ 59 and because he believed his 

son should know that his vote on the legislation could have an impact on his candidacy. 

Representative Smith testified that he finally reached his son in 

person just before going to a gathering with other Members of Congress at the Hunan Dynasty restaurant, just before 10:00 p.m. on 

Friday November 21. In that telephone conversation, as he had in 

the message he left on his father’s answering machine, Brad Smith 

urged Representative Smith to maintain his resolve to vote against 

the Medicare legislation, regardless of whatever impact it might 

have on his candidacy.60

4. Remarks Made by Representative Smith to Fellow Members at 

the Hunan Dynasty Restaurant 

The gathering of certain Members of the Republican Study Committee (RSC) at Hunan Dynasty restaurant had been planned in 

advance of Friday November 21 as a way for Members intending 

to vote against the Medicare legislation to get together in a mutually supportive environment before the vote.61 Based on testimony 

presented to the Investigative Subcommittee, there were as few as 

10 and perhaps as many as 25 Members present at various points 

throughout the time that the gathering lasted. Only two individuals in attendance were not Members of Congress, the RSC’s Executive Director, Neil Bradley, and Guy Short, Chief of Staff to Representative Marilyn Musgrave, who accompanied Representative 

Musgrave to the gathering.62

At some point during the gathering, various Members began to 

describe efforts that had been directed at convincing them to vote 

in favor of the Medicare legislation. Representative Smith was 

among those who addressed the group. One Member who was 

present at Hunan Dynasty during the gathering, Representative 

Jeff Flake, told the Investigative Subcommittee that he believed it 

was at Hunan Dynasty that Representative Smith told him and 

others present that he had been promised support for his son in 

terms of money and an endorsement from the NRCC if he would 

back the legislation.63 Representative Flake told the Investigative 

23 

‘‘the pharmaceutical industry had prepared to back me . . . in the primary election and that 

the support would be substantial.’’ See B. Smith Dep. at page 8–9. 64See Rep. Flake Dep. at page 7. 65See Rep. Flake Dep. at pages 8, 12–13, 28. 66See Deposition of Representative Gil Gutknecht (hereinafter Rep. Gutknecht Dep.) at page 

10. 67See Rep. Gutknecht Dep. at page 10. 68 Representative Smith also used the analogy to a ‘‘carrot’’ and a ‘‘stick’’ in this way during 

a radio interview he did on a Michigan radio station. See Exhibit 7. 69See Rep. Gutknecht Dep. at pages 14–15. 70See Rep. Gutknecht Dep. at pages 15–17. 

Subcommittee that he recalled Representative Smith saying that, 

in the end, he had decided not to vote in favor of the Medicare legislation.64

Representative Flake also told the Investigative Subcommittee 

that Representative Smith did not mention having been offered a 

specific dollar amount for his son’s campaign in exchange for a vote 

in favor of the Medicare legislation. He did not remember Representative Smith saying by whom the offer of an NRCC endorsement and money had been made. Representative Flake recalled 

that Representative Smith also told him and others present that 

his son had called him and urged him not to change his vote in response to the pressure.65

Representative Gil Gutknecht, who was also present at the 

Hunan Dynasty gathering, told the Investigative Subcommittee 

that the ‘‘story’’ 66 Representative Smith told the group gathered at 

the restaurant was the most compelling one he recalled being recounted that evening. Representative Gutknecht told the Investigative Subcommittee that Representative Smith said he had received 

a call or calls in which he was offered ‘‘a carrot and stick’’ 67 regarding his son.68 Representative Gutknecht remembered Representative Smith telling the group that if he voted for the bill, there 

would be people who would like to help his son in his election effort. But, Representative Gutknecht recalled, Representative Smith 

said he had been told that if he voted against it, there would be 

people who would make his son’s task of succeeding him very difficult. In the Washington Post article dated December 23, 2003 (see 

Exhibit 12), Representative Gutknecht was quoted as having said 

that ‘‘people from leadership’’ had offered Representative Smith 

money. With regard to the phrase ‘‘people from leadership,’’ Representative Gutknecht told the Investigative Subcommittee that he 

believes Representative Smith ‘‘used that term in the conversation 

at the Chinese restaurant.’’ 69

Although Representative Gutknecht does not recall Representative Smith mentioning a specific sum of money being offered for his 

son’s campaign, he told the Investigative Subcommittee that Representative Smith made statements that left the group with the impression that large sums of money had been at least referred to if 

not offered as part of the effort to persuade him to vote in favor 

of the legislation. Representative Gutknecht also said he believed, 

based on what Representative Smith said, that the offer had to 

have come from someone in leadership who had the ability to raise 

a substantial amount of money for Representative Smith’s son’s 

campaign. 70

Representative Tom Tancredo was also present at the Hunan Dynasty gathering. He testified that at some point during the evening 

‘‘[Representative] Smith said they offered me $100,000 . . . [or] he 

24 

71See Rep. Tancredo Dep. at pages 15–16. 72See Rep. Tancredo Dep. at page 16. 73 As previously noted, the sum of $100,000 was cited as having been offered to Representative 

Smith in a Chicago Sun-Times column dated November 27, 2003. (See Exhibit 5) Representative 

Tancredo told the Investigative Subcommittee that he was not the source of information about 

the $100,000 figure cited in the column. See Rep. Tancredo Dep. at page 20. 74See Rep. Feeney Dep. at pages 21–22. 75 Representative Feeney told the Investigative Subcommittee that as he listened to Representative Smith that evening at Hunan Dynasty, it occurred to him that Representative Smith 

might have been referring to his conversation with Jason Roe, although it seemed to him that 

Representative Smith was characterizing their conversation in a much more ‘‘aggressive’’ way 

than had been described by Mr. Roe. Representative Feeney said: ‘‘I didn’t know for sure that 

he was talking about Jason’s conversation or Jason’s conversation alone, because . . . Nick’s 

characterization of the conversation, the way he described it to the group was a lot more aggressive and assertive than what Jason told me he had relayed to Nick, a whisper down the lane 

type of thing.’’ See Rep. Feeney Dep. at page 22. 76See Rep. N. Smith Dep. at pages 109–110. 77See Rep. N. Smith Dep. at page 110. 

may have said they promised $100,000 if [he] voted the right 

way.71 Representative Tancredo further testified that he remembered Representative Smith ‘‘explaining the fact that they were 

talking about the possibility that his son could receive $100,000 if 

he were to vote for the bill’’ or ‘‘it could also have been that . . . 

he would not receive $100,000 if he voted no.72 Representative 

Tancredo told the Investigative Subcommittee that his recollection 

on the point of Representative Smith’s use of the $100,000 figure 

was clear and specific. He stated that his memory had not been influenced by a columnist’s use of the figure in a column published 

in the Chicago Sun-Times on November 27, 2003.73 Representative 

Tancredo said that Representative Smith did not identify the 

source of the $100,000 offer but that, based on what Representative 

Smith had said, Representative Tancredo believed the offer was 

made by lobbyists. Representative Tancredo told the Investigative 

Subcommittee his inference that the offer was made by lobbyists 

was based on his belief that only large industry lobbyists would 

have ready access to as large a sum of money as $100,000 to be 

donated to a campaign. 

Representative Tom Feeney, who was also present at the Hunan 

Dynasty restaurant gathering, stated that during the gathering 

Representative Smith ‘‘suggested’’ 74 that pharmaceutical companies were going to work against his son’s campaign if Representative Smith voted against the Medicare bill. Representative Feeney 

recalled Representative Smith saying that when he told his son 

about the situation, Brad Smith had told him to do what was right 

regardless of what was said about his campaign. Representative 

Feeney indicated that, although he could not recall whether Representative Smith specifically said that pharmaceutical companies 

had made the offer, whatever term Representative Smith used had 

created the impression in Representative Feeney’s mind that the 

pharmaceutical industry was behind the combined offer and 

threat.75

Representative Smith told the Investigative Subcommittee that 

he recalls telling the group at Hunan Dynasty that efforts to persuade him to change his vote on the Medicare legislation were 

‘‘about as tough as I’ve ever had it because it involves my son Brad. 

That there had been offers of big-time support for Brad’s campaign, 

offers of endorsements by leadership’’ 76 and that, consequently, his 

vote on the Medicare legislation would be ‘‘a tough decision.’’ 77 He 

also recalls telling the group: ‘‘I’m sticking to my guns on voting 

25 

78See Rep. N. Smith Dep. at page 110. 79See B. Smith Dep. at page 71. Representative Smith testified that he had no recollection 

of speaking with his son in Michigan the Saturday afternoon following the Medicare vote. He 

said that if his wife and son had not told him about their conversation, he would not have 

known that it occurred. See Rep. N. Smith Dep. at pages 150, 195. 80See Rep. N. Smith Dep. at pages 109–110. 81See Transcript of Interview of Neil Bradley (hereinafter Bradley Int.) at page 18. Guy Short, 

Chief of Staff to Representative Musgrave, was also interviewed by Investigative Subcommittee 

counsel. Mr. Short said during the interview that there were ‘‘many different conversations 

going on all at the same time’’ during the gathering at Hunan Dynasty and that he did not hear 

any of the statements made by Representative Nick Smith that had been described by Representatives Tancredo, Gutknecht or Feeney. See Transcript of Interview of Guy Short (hereinafter Short Int.) at pages 15–19. 82See Rep. N. Smith Dep. at pages 16, 77. 

no against the bill. And what’s nice for me is Brad left me a message saying, Stick to your guns, I don’t want to go to Congress that 

way.’’ 78 Representative Smith also recalled telling the group at the 

restaurant that he had been told his son could receive an NRCC 

endorsement if he voted in favor of the Medicare legislation. 

Brad Smith testified that his father told him about the events at 

the Hunan Dynasty gathering the night before the Medicare vote 

during a face-to-face conversation they had in Michigan the Saturday afternoon following the vote. According to Brad Smith, his father told him that when he told the people at the gathering that 

‘‘Brad had said, stick to my guns . . . the room erupted in applause.’’ 79

Representative Smith said his remarks to the group at Hunan 

Dynasty were based on the two telephone calls he received from his 

former staff member, Jason Roe, and the offer of a personal endorsement for his son that he had received from the Majority Leader. Representative Smith stated that neither the Majority Leader 

nor Mr. Roe mentioned a specific dollar amount in connection with 

any discussion of his vote on the Medicare legislation. He did not 

recall telling the group at Hunan Dynasty that he had been offered 

$100,000 or any other specific sum of money.80

After reading press reports published in the wake of his allegations of wrongdoing in connection with the vote on the Medicare 

Prescription Drug Act, including the column published in the Chicago Sun-Times on November 27, 2003, Representative Smith 

called Neil Bradley, the RSC’s Executive Director who had also 

been present at the Hunan Dynasty gathering, and asked him if he 

recalled Representative Smith referring to the $100,000 figure 

when he spoke to the group at the restaurant. Mr. Bradley told 

Representative Smith that he did not cite the figure during his 

comments to the group. In an interview conducted by counsel to the 

Investigative Subcommittee, Mr. Bradley similarly stated that he 

had not heard Representative Smith cite the $100,000 figure during his remarks to the group.81

Representative Smith told the Investigative Subcommittee that, 

regardless of what he might have said at Hunan Dynasty or in subsequent media comments, no one in fact offered him $100,000 or 

any other specific sum of money in exchange for changing his vote 

to one in favor of the Medicare legislation.82

The gathering at the Hunan Dynasty restaurant appears to have 

broken up some time after 10:00 p.m. on Friday, November 21. 

26 

83The restaurant apparently stayed open for some period of time after its normal closing time 

in order to accommodate the Members. The record indicates that a vote was called for 11:19 

p.m. on Friday, November 21. (See Exhibit 20). 84See Rep. N. Smith Dep. at page 49. 85See Rep. N. Smith Dep. at page 50. 86 Jason Roe told the Investigative Subcommittee that Representative Smith called him from 

Michigan during the day on Saturday November 22 and recounted various incidents that had 

occurred on the House floor while the vote was open. Mr. Roe recalled that during the conversation, Representative Smith said that Representative David Dreier had offered to help Representative Smith’s daughter find a job as an actress in Hollywood. (See Roe Dep. at page 47) Representative Smith did not recall this November 22 telephone conversation with Mr. Roe and denied that Representative Dreier had made an offer to help his daughter in connection with the 

vote on the Medicare legislation. (See Rep. N. Smith Dep. at pages 149–150.) Representative 

Dreier similarly told the Investigative Subcommittee that he had made no such offer in connection with the vote. See Deposition of Representative David Dreier (hereinafter Rep. Dreier Dep.) 

at pages 10–11. 

Members who were still at the restaurant when the gathering 

ended remembered leaving because a vote had been called.83

B. EVENTS ON THE HOUSE FLOOR DURING AND IMMEDIATELY

FOLLOWING THE VOTE

As noted, the vote on the Medicare legislation was called at 3:00 

a.m. on Saturday, November 22 and was held open until approximately 5:51 a.m. Representative Smith recalls casting his ‘‘no’’ vote 

early on during the time that the vote was open. He considered voting and leaving the floor early as well but then he ‘‘decided if I was 

voting against the conference I should stay there and take my 

licks.’’ 84 Representative Smith also decided against staying in the 

company of other Republicans who had voted against the bill, as 

some of his fellow members of the RSC chose to do. Representative 

Smith told the Investigative Subcommittee that after he cast his 

vote he sat ‘‘approximately eight rows up in the northwest quadrant of the Republican area.’’ 85

Representative Smith told the Investigative Subcommittee that 

during the time the vote was open, between 20 and 30 Members 

approached him or, while in close proximity to him, said things directed at him that were intended to persuade him to change his 

vote. All of these contacts occurred after Representative Smith had 

already cast his vote and all but one of the contacts occurred while 

the vote was open.86

1. Representative Smith’s Interaction with Speaker Hastert and Secretary Tommy Thompson 

The Investigative Subcommittee became aware of information 

that Representative Smith had been seen talking with Speaker J. 

Dennis Hastert and Health and Human Services Secretary Tommy 

Thompson on the House floor while the vote on the Medicare bill 

was open. For this reason, the Investigative Subcommittee requested information from the Speaker and Secretary Thompson regarding their communications with Representative Smith. 

Representative Smith testified that he recalled speaking with 

Speaker Hastert and Secretary Tommy Thompson while the vote 

was open. In a written response to interrogatories provided voluntarily and under penalty of perjury, Secretary Thompson informed 

the Investigative Subcommittee that he was in the House cloakroom while the vote was open and had been asked to be available 

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27 

87 In his response to the Investigative Subcommittee’s request for information, Secretary 

Thompson stated that he believed staff from the Department of Health and Human Services and 

from the White House were also in the cloakroom while the vote was open. Exhibit 17 at pages 

2–3. 88See Exhibit 17 at page 4. 89See Exhibit 17 at page 4. 90See Exhibit 17 at page 4. 91See Exhibit 17 at page 4. 92See Deposition of Speaker J. Dennis Hastert (hereinafter Speaker Dep.) at page 11. 93See Speaker Dep. at page 10. 94See Rep. N. Smith Dep. at page 56. 95 In the notes in his diary calendar, Representative Smith wrote: ‘‘Sec. T. Thompson and 

Speaker D. Hastert sat next to me and ask ’personal’ favor—.’’ See Exhibit 19. The Speaker testified that in early December 2003, following the vote on the Medicare bill, he had occasion to 

ask Representative Smith about the allegations or wrongdoing he had made in connection with 

the vote. The Speaker said that Representative Smith told him ‘‘it’s just a misunderstanding.’’ 

See Speaker Dep. at page 22. The Speaker also received a handwritten note from Representative 

Smith after the Medicare vote in which Representative Smith wrote that ‘‘[i]t was so difficult 

Continued 

tion.87 He stated that someone asked him to speak to Representative Smith ‘‘because he or she thought that Representative Smith 

could be convinced to change his mind and vote in favor’’ 88 of the 

legislation. He does not recall who asked him to speak to Representative Smith. Secretary Thompson stated that he spoke briefly 

with Representative Smith on the House floor, ‘‘asking Representative Smith if he had any questions on the bill that I could answer, 

or if there was any information that I could provide to him. He said 

no.’’ 89 Secretary Thompson also asked Representative Smith ‘‘if 

there was any chance that he would vote for the bill. He said no.’’ 90

While the Secretary was ‘‘in the presence of Representative Smith,’’ 

the Speaker joined them.91

The Speaker told the Investigative Subcommittee that he prevailed on Representative Smith to vote in favor of the legislation 

based on the bill’s merits. The Speaker testified that he spoke with 

Representative Smith for about ten minutes. He described their 

discussion as being ‘‘pretty much focused on policy,’’ 92 including 

discussion of cost-containment measures the Speaker said he knew 

would be of interest to Representative Smith. 

Knowing that Representative Smith was going to retire after the 

108th Congress, the Speaker recalls telling him that he had a legacy in the House of being very fiscally conservative and that if he 

wanted to pass on a legacy to his children and grandchildren, a 

vote in favor of the Medicare legislation would be a good vote for 

him because, the Speaker believed, the legislation started to ‘‘bend 

the cost curve’’ 93 on Medicare. The Speaker also recalls that, because he presumed Representative Smith would be interested in 

them, he discussed health savings accounts and mentioned that 

this would be the only chance for Representative Smith to vote on 

health savings accounts. 

Representative Smith told the Investigative Subcommittee that 

he recalls the Speaker telling him a vote in favor of the legislation 

would ‘‘be good for the Republican Party’’ and ‘‘good for the President’’ and ‘‘that if we didn’t vote this one then it could be . . . a 

real possibility that even a more serious vote’’ would come ‘‘from 

the Democrats’’ that could ‘‘get to the floor and be passed.’’ 94 According to Representative Smith, neither the Speaker’s comments 

nor those of Secretary Thompson formed any part of the basis for 

his subsequent allegations that ‘‘bribes and special deals’’ were offered to him in an effort to convince him to change his vote.95

28 

to say no to someone I respect so much yesterday morning. . . . On the drug entitlement, we 

both felt strongly about our positions.’’ See Exhibit 23. 96See Deposition of Representative William Thomas (hereinafter Rep. Thomas Dep.) at page 

8. 97See Rep. Thomas Dep. at page 9. 98See Deposition of Representative Nancy Johnson (hereinafter Rep. N. Johnson Dep.) at page 

6. 99See Rep. N. Johnson Dep. at page 6. 100See Rep. N. Johnson Dep. at page 6. 101See Rep. N. Johnson Dep. at page 6. 102See Rep. N. Johnson Dep. at page 6. 103See Rep. N. Johnson Dep. at page 6. 

2. Representative Smith’s Interaction with Representative William 

Thomas and Representative Nancy Johnson 

The Investigative Subcommittee also became aware of information that Representative William Thomas, Chairman of the House 

Ways and Means Committee, and Representative Nancy Johnson, 

Chair of the Ways and Means Health Subcommittee, spoke with 

Representative Smith on the House floor while the vote on the 

Medicare legislation was open. For this reason, the Investigative 

Subcommittee requested testimony from Representative Thomas 

and Representative Johnson regarding their communications with 

Representative Smith. 

Chairman Thomas told the Investigative Subcommittee that he 

spoke to Representative Smith for ten or fifteen seconds early during the period in which the Medicare vote was open. He recalls telling Representative Smith ‘‘[W]e need your vote, I’d like to have you 

vote for [the Medicare bill].’’ 96 Representative Smith said no and, 

having received what he felt was a ‘‘hard no,’’ 97 Representative 

Thomas did not speak with Representative Smith again while the 

vote was open. Representative Smith told the Investigative Subcommittee that he did not recall speaking with Chairman Thomas 

at all while the vote was open. 

Representative Nancy Johnson testified that she recalls having 

spoken with Representative Smith ‘‘probably . . . two, maybe three 

times, about changing his vote’’ 98 on the Medicare bill while the 

vote was open. Representative Johnson told the Investigative Subcommittee that Representative Smith ‘‘felt very, very strongly 

about the budget implications and his vote was based on that.’’ 99

She told the Investigative Subcommittee that, as a result, she 

‘‘spent a great deal of time talking to him about how [she] felt the 

structure of the bill would control Medicare spending in the future, 

and, therefore, was a prodeficit reduction vote.’’ 100 In another instance while the vote was open, Representative Johnson talked to 

Representative Smith ‘‘about the problem with the hospitals’’ 101

and the fact that the legislation was aimed at ‘‘fixing a number of 

those problems.’’ 102 Representative Johnson said that she ‘‘took 

various lines of reasoning to get him to change his vote’’ 103 but 

Representative Smith remained a no vote. 

3. Representative Smith’s Interaction with Representative Candice 

Miller 

During the course of its inquiry, the Investigative Subcommittee 

also obtained information that Representative Candice Miller and 

Representative Smith were involved in an exchange on the House 

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29 

104See Deposition of Representative Candice Miller (hereinafter Rep. C. Miller Dep.) at page 

9. 105See Rep. C. Miller Dep. at page 9. 106See Rep. C. Miller Dep. at page 9. 107See Rep. C. Miller Dep. at page 9. 108See Rep. C. Miller Dep. at page 10. 109See Rep. C. Miller Dep. at page 10. 110See Rep. C. Miller Dep. at page 11. 111See Rep. C. Miller Dep. at page 11. 112 Representative Miller told the Investigative Subcommittee that she had not in fact gotten 

involved in the Michigan Seventh District primary, nor had she worked against Brad Smith in 

any capacity, after the Medicare vote. See Rep. C. Miller Dep. at pages 11, 16. 

committee therefore requested that Representative Miller provide 

testimony. 

Representative Miller told the Investigative Subcommittee that 

the first time she spoke to Representative Smith about his vote on 

the Medicare legislation was on the House floor while the vote was 

open, after Representative Smith had cast his vote. She estimated 

that she spoke with him during the first hour of the time that the 

vote was held open. Representative Miller saw Representative 

Smith’s no vote on the board and she ‘‘didn’t like the way that he 

voted.’’ 104 Representative Miller testified that, on her own initiative, she approached Representative Smith and said words to the 

effect of: ‘‘Is this how you’re going to vote; or, This is how you’re 

going to vote? And he said, Obviously.’’ 105

Representative Miller recalled that she responded by saying 

words to the effect of: ‘‘Well, I hope your son doesn’t come to Congress, or I’m not going to support your son, or something to that 

effect.’’ 106 Representative Smith then ‘‘rose up out of his seat and 

said, You get out of here.’’ 107 That was the end of the interaction 

between the two Members. Representative Miller estimated that 

the exchange lasted for about ten seconds. She told the Investigative Subcommittee that she did not at any point ask Representative 

Smith to change his vote on the Medicare legislation. 

Representative Miller told the Investigative Subcommittee that 

she approached Representative Smith after she saw that he had 

voted against the Medicare bill because she was angry he had 

voted against legislation that, in her view, would help ‘‘poor seniors’’ get ‘‘a break on prescription drugs.’’ 108 She told the Investigative Subcommittee that Representative Smith was obviously angered by her remarks about his son. She testified that Representative Smith was ‘‘constantly asking [her] to support his son and help 

his son’’ 109 because she had been a statewide officeholder in their 

home state of Michigan before she was elected to Congress and had 

been ‘‘the highest vote-getter in Michigan history.’’ 110 Representative Miller noted that she ‘‘probably could have some impact on his 

son’s election.’’ 111 She told the Investigative Subcommittee that, 

even after the Medicare vote, Representative Smith invited her to 

a fundraiser for his son. 112

Representative Smith denied ever having asked Representative 

Miller for support for his son’s campaign. He also denied inviting 

her to a fundraiser at any time after the Medicare vote. Representative Smith’s recollection of his interaction with Representative 

Miller on the House floor while the Medicare vote was open was 

substantially similar to Representative Miller’s recollection except 

in one respect. Representative Smith told the Investigative Subcommittee that Representative Miller specifically threatened to 

work against his son if he did not change his vote. Representative 

30 

113See Rep. N. Smith Dep. at page 58. In his diary calendar, Representative Smith wrote: 

‘‘Candice M. said she would work against B. if I voted no /// Got mad.’’ See Exhibit 19. 114See Deposition of Representative Howard ‘‘Buck’’ McKeon (hereinafter Rep. McKeon Dep.) 

at page 7. 115See Deposition of Representative Curt Weldon (hereinafter Rep. Weldon Dep.) at pages 6– 

8. 116See Deposition of Representative James T. Walsh (hereinafter Rep. Walsh Dep.) at page 

6. 117See Rep. Walsh Dep. at page 6. 118See Rep. Walsh Dep. at pages 6, 9. 119See Rep. Walsh Dep. at page 6. 120See Rep. Walsh Dep. at page 6. 

Smith’s recollection was that Representative Miller ‘‘came up and 

said something like, I haven’t been involved in this campaign before, but if you don’t change your vote, I’ll get involved, and I’ll 

make sure Brad isn’t elected.’’ 113

Representative Howard P. (‘‘Buck’’) McKeon was sitting near 

Representative Smith during the time of his interaction with Representative Miller. Representative McKeon told the Investigative 

Subcommittee that he did not believe Representative Miller linked 

a demand that Representative Smith change his vote to her statement that she would work against his son Brad’s campaign. Representative McKeon recalls that Representative Miller ‘‘came up 

and said, you are really going to do this, Nick? And he said yeah. 

. . . [S]he got mad and she said, well, I’m going to do all I can to 

beat your son. And then they kind of swore at each other a little 

bit. It was not pleasant. And then she left.’’ 114

Representative Smith, Representative Miller and Representative 

McKeon recalled that Representative Curt Weldon was also sitting 

next to Representative Smith during his interaction with Representative Miller. Each of these Members recalled Representative 

Weldon trying to calm Representative Smith down after he got to 

his feet in response to Representative Miller’s comments. However, 

although he remembers having to calm him at some point during 

the open vote, Representative Weldon told the Investigative Subcommittee that he did not recall the details of the interaction between Representatives Miller and Smith.115

4. Representative Smith’s Interaction with Representative James T. 

Walsh 

While Representative McKeon was sitting near Representative 

Smith, Representative James Walsh also approached Representative Smith. Representative Walsh told the Investigative Subcommittee that he had ‘‘worked very hard’’ on the Medicare bill and 

was ‘‘pretty invested in the success of [the] legislation’’ because it 

would have a ‘‘great impact on [his] community.’’ 116 Representative 

Walsh noted that his district ‘‘had already lost one hospital . . . 

[that] was in bankruptcy’’ and had another hospital ‘‘on the 

ropes.’’ 117 He believed that the Medicare legislation would improve 

the situation in his home district. 

Most Members had already voted and Representative Walsh was 

feeling ‘‘frustrated’’ and ‘‘impatient’’ waiting for the outcome of the 

vote.118 These feelings led him to approach Representative Smith, 

knowing that Representative Smith had voted against the bill. Representative Walsh said that he made the decision to approach Representative Smith on his ‘‘own initiative.’’ 119 He asked Representative Smith ‘‘[C]an’t you help us on this one?’’ 120 Representative 

Smith said no and Representative Walsh responded by saying 

31 

121See Rep. Walsh Dep. at page 6. 122See Rep. Walsh Dep. at page 6. 123See Rep. Walsh Dep. at page 7. 124See Rep. Walsh Dep. at page 7. 125See Rep. Walsh Dep. at page 7–8. 126See Rep. N. Smith Dep. at page 151. 127See Exhibit 24. 128 According to the record of roll call votes, the next votes after November 22 were called on 

Monday, December 8, 2003. See Exhibit 20 If Representative Walsh saw Representative Smith 

after Members returned to the House on Monday December 8 or Tuesday December 9, he would 

have made his contribution to Brad Smith’s campaign within two or three days after apologizing 

to Representative Smith. 

words to the effect of: ‘‘ [W]ell . . . then, Nick, maybe you ought 

to think about sending me back that check that I sent to your son,’’ 

referring to a campaign contribution Representative Walsh believed 

he had already made to Representative Smith’s son’s campaign.121

Representative Walsh explained that, approximately ‘‘3 or 4 or 5 

weeks prior’’ 122 to the time of the Medicare vote, Representative 

Smith had asked him to contribute to Brad Smith’s campaign. He 

believed that he had between that time and the time of the Medicare vote instructed his campaign to make a $1,000 contribution to 

Brad Smith’s campaign. At the time of the Medicare vote, he believed that the contribution had been made. 

Representative Walsh told the Investigative Subcommittee that 

he regretted making the statements to Representative Smith that 

he made during the Medicare vote. Representative Walsh said that 

he believed ‘‘it was a stupid thing to say’’ 123 and that he had not 

planned to say it when he approached Representative Smith. Representative Walsh attributed his remarks to Representative Smith 

to ‘‘a combination of frustration and fatigue and a desire to get the 

bill passed.’’ 124

Representative Walsh told the Investigative Subcommittee that 

on the Monday or Tuesday after Congress was back in session after 

the Medicare vote, he ran into Representative Smith, who told him 

that he had not in fact made the contribution to Brad Smith’s campaign. Representative Walsh told the Investigative Subcommittee 

that he responded to Representative Smith by saying that what he 

had said on the floor was ‘‘stupid’’ and that he was going to make 

the contribution to Brad Smith’s campaign anyway.125

Representative Smith’s recollection of his interaction with Representative Walsh while the Medicare vote was open differed somewhat from Representative Walsh’s recollection. Representative 

Smith told the Investigative Subcommittee that, prior to the Medicare vote, Representative Walsh had promised to contribute $1,000 

to Brad Smith’s campaign but that he told him while the vote was 

open that he was not going to make the contribution.126

Federal Election Commission records of disbursements from Representative Walsh’s campaign indicate that on December 11, 2003, 

his campaign made a $1,000 contribution to Brad Smith’s campaign,127 thus apparently corroborating Representative Walsh’s 

recollection of the interactions he had with Representative Smith 

during and subsequent to the Medicare vote.128 In addition, Representative McKeon recalls witnessing the exchange between Representatives Smith and Walsh. He told the Investigative Subcommittee, as Representative Walsh had, that Representative 

32 

129See Rep. McKeon Dep. at page 9. 130See Rep. Cunningham Dep. at page 13. 131See Rep. Cunningham Dep. at page 15. 132See Rep. Cunningham Dep. at page 15. 133 If Secretary Thompson was part of the group talking to Representative Smith when Representative Cunningham was observing them, it appears that Representative Cunningham 

would not have overheard the exchanges between Representative Walsh and Representative 

Smith or between Representative Candice Miller and Representative Smith that related to Representative Smith’s son. Representative McKeon told the Investigative Subcommittee that he recalls Representative Smith’s interactions with Representative Miller and Representative Walsh 

occurring prior to the time that the Secretary approached Representative Smith. See Rep. 

McKeon Dep. at pages 9–10. 134See Rep. Cunningham Dep. at page 13 

Walsh asked for his contribution back rather than saying he would 

not make the contribution.129

5. Representative Smith’s Interaction with Representative Randy 

‘‘Duke’’ Cunningham 

Representative Cunningham testified that, at some point while 

the vote on the Medicare legislation was open, someone on the 

whip team told him the names of various Members who were expected to vote against the legislation. Representative Cunningham 

told the Investigative Subcommittee that, based on that information, he approached several Members who were expected no votes 

to try to convince them to vote in favor of the bill. When he approached Representative Nick Smith, members of leadership were 

already sitting with him. Representative Cunningham took a seat 

near the group, ‘‘three or four, maybe five people back’’ 130 from 

where Representative Smith was sitting. At some point, Representative Cunningham testified, Secretary Thompson was also part of 

the group talking to Representative Smith. 

Representative Cunningham told the Investigative Subcommittee 

that he wanted to hear the arguments in favor of the legislation 

that were being made to Representative Smith so that he could use 

them to persuade others. He recalls Majority Leader DeLay, Speaker Hastert and Secretary Thompson being among the group talking 

with Representative Smith at that time. He recalled hearing them 

present Representative Smith with arguments in favor of the legislation including ‘‘specifics on why the bill was good . . . why we 

had wanted the bill to pass.’’ 131 They argued that the bill ‘‘was 

good for seniors; that we had invested a great deal of money’’; that 

it ‘‘was a compromise between the Republicans and Democrats [;] 

that originally they wanted this amount of money to go into it and 

we actually added more money to it.’’ 132 Representative 

Cunningham told the Investigative Subcommittee that while he 

was listening, he heard no one mention Representative Smith’s 

son’s campaign. 133

After listening to the discussion involving Representative Smith 

for some period of time, and while the vote was still open, Representative Cunningham recalls remarking to Representative 

Smith ‘‘Nick, you know, Nancy Pelosi wants this bill to go 

down.’’ 134

Representative Smith did not recall specifically what Representative Cunningham said to him while the vote was open. However, 

he told the Investigative Subcommittee that ‘‘Duke Cunningham 

said something very briefly that . . . that led me to believe that 

33 

135See Rep. N. Smith at pages 62–63. 136See Rep. Cunningham Dep. at page 16. 137See Rep. N. Smith Dep. at page 63. 138See Rep. Cunningham Dep. at page 39. 139See Rep. Cunningham Dep. at page 24. 140See Rep. Cunningham Dep. at page 41. 141 A February 12, 2004 Detroit News article stated that Representative Smith ‘‘estimated 

that between 40 and 60 lawmakers pressured him’’ while the vote was open. (See Exhibit 13) 

In his December 17, 2003 letter to the Chairman and Ranking Member of the Standards Committee, Representative Smith stated that he had ‘‘conversations with at least 30–40 members 

of Congress.’’ (See Exhibit 11) Representative Smith told the Investigative Subcommittee that 

Continued 

he was suggesting that he would also work against Brad in his 

campaign.’’ 135

Representative Cunningham told the Investigative Subcommittee 

that the only reference to Representative Smith’s son’s campaign 

that he heard the morning of the Medicare vote was one that he 

himself made after the vote was closed. Representative 

Cunningham told the Investigative Subcommittee that after most 

Members had left the House floor, and as he was walking out past 

Representative Smith, he said words to the effect of: ‘‘[W]ell, if your 

son is as hard headed as you, I will be damned if I will vote for 

him or help him.’’ 136

Representative Smith told the Investigative Subcommittee that 

after the vote was over and Members were leaving the floor, Representative Cunningham walked by him and waved what appeared 

to be a billfold at him while saying something to the effect of: 

‘‘[W]e’ve got $10,000 already . . . to make sure your son doesn’t get 

elected.’’ 137 When asked whether he waved a wallet or checkbook 

at Representative Smith while making such comments, Representative Cunningham said: ‘‘I don’t remember if I waved the checkbook. 

I don’t remember if I did or not. But I don’t know. But I’m sure 

about that not supporting him.’’ 138 Representative Cunningham 

denied mentioning $10,000 or any other specific sum of money in 

connection with his remarks about not supporting Brad Smith’s 

candidacy. 

Representative Cunningham told the Investigative Subcommittee 

that he made those final remarks as he was leaving the House 

floor in part because he ‘‘believed in the bill’’ and was ‘‘disappointed’’ that Representative Smith had voted against it despite 

‘‘all the information that he had been given’’ and the efforts that 

had been made by leadership and by Secretary Thompson to convince him to vote for the bill. 139 Representative Cunningham testified that he regretted making the comments about Representative 

Smith’s son almost immediately after having said them. He told 

the Investigative Subcommittee: ‘‘I remember even thinking as I 

walked off the floor I shouldn’t have said that to Nick in the heat 

of things.’’ 140 Representative Cunningham and Representative 

Smith both testified that Representative Cunningham apologized 

for making remarks about Representative Smith’s son the first 

time he saw Representative Smith after Congress was back in session. 

6. Representative Smith’s Contacts with Unidentified Members 

Representative Smith told the Investigative Subcommittee that 

he could not recall every one of the 20 to 30 Members who spoke 

to him on the House floor while the Medicare vote was open.141 He 

34 

that the estimate of 20–30 Members was the more accurate estimate. He said that he did not 

recall telling the Detroit News that he had been approached by between 40 and 60 lawmakers. 

142See Rep. N. Smith Dep. at page 68. 143See Rep. N. Smith Dep. at pages 70–71. 144Staff counsel to the Investigative Subcommittee reviewed a C–SPAN videotape of activity 

in the House chamber while the vote on the Medicare legislation was open. After the first approximately 15 minutes of the time that the vote was held open, the camera remained focused 

on the other side of the chamber from where Representative Smith was sitting. 145See Rep. N. Smith Dep. at page 64. 146See Rep. N. Smith Dep. at pages 85–86. 147 In an interview conducted by Investigative Subcommittee staff, Kurt Schmautz, Representative Nick Smith’s Chief of Staff, stated that he wrote the last four paragraphs of the column 

having to do with substantive aspects of the Medicare legislation on Friday, November 21, before the vote. Representative Smith made some revisions to what Mr. Schmautz had written and 

then added ‘‘[m]ost of the stuff about Brad’’ after the vote. (See Schmautz Int. at pages 31–32). 

said, for example, that someone had said that if he changed his 

vote to support the legislation, three out of the five members of 

House leadership would be willing to go to his home district to 

campaign for his son. Representative Smith testified: 

A lot of it was fairly—look, Nick, help us if you can. 

Nick, this could—this could be important to you and your 

son. From the more subtle to the more aggressive, that, 

look, three of the five—it seems like I remember somebody 

saying three of the five leadership would be willing to 

come to Michigan to campaign for your son. Somebody saying, look, you’ve got a pharmaceutical—you’ve got two 

pharmaceutical companies in your district. There is [sic] 

important to them.142

Representative Smith testified that he could not recall specifically who made those comments. Representative Smith further testified that there seemed ‘‘to be a constant stream of people coming 

by me to say, Nick, we really need your help on this one. Nick, this 

can be important to your future; and it can be important to your 

son’s future. Nick—you know, just sort of a constant help us out 

on this one, and it can be important to you and your son.’’ 143 Various Members who appeared before the Investigative Subcommittee 

recalled seeing several people around Representative Smith at different points during the hours that the vote was open.144

C. REPRESENTATIVE SMITH’S ACTIONS AFTER THE VOTE AND HIS

ALLEGATIONS OF WRONGDOING

Representative Smith told the Investigative Subcommittee that 

after the vote was over, he felt ‘‘beat . . . tired, physically and mentally. And angry, as you might guess.’’ 145 Representative Smith 

could not recall whether, after he left the House floor at the conclusion of the proceedings, he went home to his Washington apartment or if he went directly to his office in the Rayburn building 

to finish writing his weekly column. Representative Smith speculated that since he intended to finish the column, he probably went 

from the floor to his office without going to his apartment first.146

Representative Smith told the Investigative Subcommittee that 

he and his Chief of Staff had written the bulk of the November 23, 

2003 column prior to the actual vote on the Medicare legislation.147

After the vote, Representative Smith himself added the first two 

paragraphs of the column in which he expressed publicly for the 

first time his allegations of wrongdoing in connection with the 

Medicare vote. 

35 

148See Exhibit 1. 149See Rep. N. Smith Dep. at pages 45–46. 

As has been previously summarized (see Section I.A., above), in 

the first paragraph of the column, Representative Smith asserted 

that ‘‘bribes and special deals were offered to convince members to 

vote yes.’’ In the second paragraph of the column, he asserted that 

he had been ‘‘targeted by lobbyists and the congressional leadership’’ and that ‘‘members and groups made offers of extensive financial campaign support and endorsements for my son Brad’’ if he 

voted yes.148

When asked by the Investigative Subcommittee to state specifically what he was referring to when he said that ‘‘bribes and special deals’’ had been offered, Representative Smith at first attempted to make a distinction between what he characterized as 

the legal definition of a bribe and the dictionary definition of a 

bribe. He, nevertheless, failed to state specifically what communications were made to him in connection with his vote on the 

Medicare legislation that would constitute a bribe under either a 

legal or a dictionary or colloquial definition of the word. 

Eventually, under persistent questioning from a Member on the 

Investigative Subcommittee, Representative Smith defined what he 

meant by the word ‘‘bribe’’ and what communications he was referring to when he used the word in his November 23, 2003 column: 

A [By Representative Nick Smith] I think it essentially 

says trying to offer somebody something for doing something they might not otherwise do. But that’s certainly 

probably isn’t the legal definition. 

* * * * * 

A I don’t think what happened, trespassing on my family, is the proper thing to do. 

* * * * * 

Q [by a Member of the Investigative Subcommittee] 

. . .—[A]t least at some level, you used the word bribe, not 

in the legal sense, in the dictionary sense, what were you 

referring to? 

A Like I’ve said, that offers were made that were very 

emotional involving the success or failure of my son in his 

campaign to become a congressman. 

* * * * * 

Q So your use of the term bribes . . . isn’t from your conversations with Jason [Roe] but rather from something 

that happened on the floor. 

A Correct. 

* * * * * 

A [by Representative Nick Smith] No. No. It’s both a 

threat—you know, I assume that leadership endorsements 

of Brad and coming to the district, which I was told could 

very well happen, means not only strong Republican support for Brad in the Republican primary but also probably 

in my mind means money. It means fundraising.149

When asked to identify by name individuals whose conduct had 

been inappropriate, Representative Smith said that anyone who 

36 

150See Rep. N. Smith Dep. at page 119. 151The Investigative Subcommittee made no attempt to explore the history of the use of the 

device of the Chair holding a vote open to achieve a majority of votes for a particular piece of 

legislation. Based on its observations in the instant matter, however, regardless of when this 

device may have been utilized in the past, it is the view of the Investigative Subcommittee that 

the House is not well-served by repetition of this practice. 152The extraordinary involvement of the Executive Branch during House floor proceedings on 

the Medicare Prescription Drug Act included the presence on the House floor by the Secretary 

of Health and Human Services for the purpose of speaking directly with Members and answering their questions, and to assist in securing passage of the Medicare legislation. It is the view 

of the Investigative Subcommittee that the rules of the House should be revised so as to limit 

access to the House floor by Cabinet-level officials, except for such officials that are former Members. See House Rule IV, Clause 2(a)(12) (permitting ‘‘Heads of departments’’ to ‘‘the Hall of the 

House’’). 

had brought his family, specifically his son Brad, into any discussion of his vote on the Medicare legislation had ‘‘crossed the line 

of civility.’’ 150

Based on his testimony before the Investigative Subcommittee, 

Representative Smith characterized as bribes comments, some apparently made by Members he could not identify, referring to the 

possibility of endorsements from members of leadership for his son 

Brad. He found the conduct objectionable because the comments involved benefits, and in the case of perceived threats the suggestion 

of detriments, for his son’s campaign based on Representative 

Smith’s vote on the Medicare legislation. It was on this basis that 

Representative Smith made public allegations of serious wrongdoing in connection with the Medicare vote. 

IV. FINDINGS AND RECOMMENDATIONS

A. SUMMARY OF FINDINGS

As described in this Report, the Investigative Subcommittee carried out a full investigation into public statements made by Representative Nick Smith that he received communications linking 

support for his son’s congressional candidacy with his vote on the 

Medicare Prescription Drug Act. 

The Investigative Subcommittee finds that the late-night timing 

of the vote, the extended period of time for which the vote was held 

open,151 and the unusual lobbying pressure on Members (which included the appearance on the House floor by a member of the 

President’s Cabinet),152 exacerbated tensions on the House floor 

and contributed to an environment in which the usual traditions of 

civil discourse and decorum amongst Members were not always followed. 

In addition, based on the record of evidence developed during its 

investigation, the Investigative Subcommittee reached the following 

conclusions regarding the public statements made by Representative Nick Smith: 

The Investigative Subcommittee finds that no group, organization, business interest, or corporation of any kind, or any individual 

affiliated with any such entities, offered $100,000 or any other specific sum of money to support the congressional candidacy of Brad 

Smith in order to induce Representative Nick Smith to vote in 

favor of the Medicare Prescription Drug Act. 

The Investigative Subcommittee finds that Representative Nick 

Smith was not offered an endorsement or financial support for his 

son’s candidacy from the National Republican Congressional Committee in exchange for voting in favor of the Medicare Prescription 

37 

153 Early and complete cooperation were lacking on the part of Representative Smith. He 

failed not only to provide the Committee with an explanation of inconsistent public statements 

made by him, but he did not respond to the specific request of the Chairman and Ranking Minority Member of the Committee that he identify the individual that he alleged was the impetus 

for his public statement that his son’s campaign would receive ‘‘substantial and aggressive support’’ if he voted in favor of the Medicare Prescription Drug Act. Exhibit 8. 

Drug Act. There was no evidence adduced that any consideration 

or discussion of an endorsement was undertaken within the National Republican Congressional Committee with respect to the Republican primary election in the Seventh District of Michigan held 

on August 3, 2004. Any statements made by Representative Nick 

Smith in any setting related to an endorsement or other support 

for his son by the National Republican Congressional Committee 

appear to have been the result of speculation or exaggeration on 

the part of Representative Nick Smith and speculation on the part 

of Jason Roe, a former employee of Representative Smith. 

The Investigative Subcommittee finds that Representative Randall ‘‘Duke’’ Cunningham, Representative James T. Walsh, and 

Representative Candice Miller, acting independently from each 

other, and not in coordination with any other person or organization, made statements to Representative Nick Smith on the House 

floor after learning of Representative Nick Smith’s vote in opposition to the Medicare Prescription Drug Act. Each of these statements referenced the congressional candidacy of Representative 

Nick Smith’s son. The statements made by Representative Walsh 

and Representative Miller were made before the vote on the Medicare Prescription Drug Act was closed. The statement made by 

Representative Cunningham was made after the vote on the Medicare Prescription Drug Act was concluded. All of the statements to 

Representative Nick Smith by these three Members were made 

after Representative Smith had cast his vote against the Medicare 

Prescription Drug Act. 

The Investigative Subcommittee finds that Majority Leader Tom 

DeLay, prior to the vote on the Medicare legislation on November 

22, 2003 and most likely during a vote held on the evening of November 21, 2003, offered to endorse Brad Smith in exchange for 

Representative Nick Smith’s vote in favor of the Medicare Prescription Drug Act. 

The Investigative Subcommittee finds that to the extent that 

other Members of the House or the Secretary of Health and Human 

Services attempted to persuade Representative Nick Smith to vote 

in favor of the Medicare Prescription Drug Act, such attempts did 

not involve any offers of improper ‘‘special deals.’’ Rather, such individuals attempted to persuade Representative Smith to vote in 

favor of the bill on the basis of policy or party loyalty. 

The Investigative Subcommittee finds that Representative Nick 

Smith failed to cooperate fully with the Chairman and Ranking Minority Member of the Committee on Standards of Official Conduct 

in their efforts to develop information informally about public 

statements made by Representative Nick Smith that he was the recipient of communications linking his vote on the Medicare Prescription Drug Act with support for his son’s congressional candidacy.153 Given the nature of the allegations made publicly by 

Representative Smith, his complete cooperation still may not have 

eliminated the need for empanelment of this Investigative Subcommittee. Representative Nick Smith’s early and complete coVerDate Aug 04 2004 08:49 Oct 06, 2004 Jkt 096212 PO 00000 Frm 00045 Fmt 6659 Sfmt 6602 E:\HR\OC\HR722.XXX HR722
38 

154 House Ethics Manual, 102d Cong., 2d Sess. (April 1992) at 12 (quoting 114 Cong. Rec. 8778 

(Apr. 3, 1968); In the Matter of Representative Earl F. Hilliard, H. Rep. 107–130, 107th Cong., 

1st Sess. (July 10, 2001) at 12; In the Matter of Representative E.G. ‘‘Bud’’ Shuster, H. Rep. 

106–979, 106th Cong., 2d Sess. (Oct. 16, 2000) at 9. 155 Inquiry into the Operation of the Bank of the Sergeant-At-Arms of the House of Representatives, H. Rep. 102–452, 102d Cong., 2d Sess. (March 10, 1992) at 22 (citing H. Rep. 90–1176, 

90th Cong., 2d Sess. at 17 (1968). 156See In the Matter of Representative James A. Traficant, Jr., H. Rep. 107–594, 107th Cong., 

2d Sess. Vol. 1 (July 19, 2002) (Violations of the Code of Ethics for Government Service, along 

with violations of the Code of Official Conduct, formed the basis of a Statement of Alleged Violaoperation, however, would have shortened and streamlined the Investigative Subcommittee’s inquiry, and would have likely rendered 

unnecessary the testimony of several witnesses and other investigative steps undertaken by the Investigative Subcommittee. 

The Investigative Subcommittee finds that while Representative 

Nick Smith’s initial public announcement of his allegations on November 23, 2003 may have been fueled by emotion and anger stemming from certain statements made to him by other Members in 

connection with his vote on the Medicare Prescription Drug Act, he 

failed to exercise reasonable judgment and restraint under the circumstances. Moreover, no mitigating circumstance exists for Representative Smith’s continued publication of his allegations in the 

days and weeks following November 23, 2003. 

B. REVIEW OF RELEVANT STANDARDS OF CONDUCT

Pursuant to House Rule XI, clauses 3(a)(2) and (3)(b)(2), and pursuant to Committee Rules 14(a)(3) and 18, the Committee has the 

authority to investigate any alleged violation by a Member, officer, 

or employee of the House, of the Code of Official Conduct or one 

or more law, rule, regulation, or other standard of conduct applicable to the conduct of a Member, officer, or employee of the House 

in the performance of his or her duties or the discharge of his or 

her responsibilities. 

In the discharge of its responsibilities, the Investigative Subcommittee considered what provisions of the Code of Official Conduct or other applicable laws and standards would be implicated by 

the information garnered by the Investigative Subcommittee during 

its investigation. 

The Code of Official Conduct of the House of Representatives is 

set forth in House Rule 23. The Investigative Subcommittee determined that only Clause 1 of House Rule 23 would be applicable to 

this matter. House Rule 23, Clause 1 (the ‘‘Code of Official Conduct’’) provides that ‘‘[a] Member, Delegate, Resident Commissioner, officer, or employee of the House shall conduct himself at 

all times in a manner that shall reflect creditably on the House.’’ 

As noted previously by the Committee, this provision (House Rule 

23, Clause 1) is the most comprehensive provision of the Code of 

Official Conduct and was adopted in part so that the Committee, 

in applying the Code, would retain ‘‘the ability to deal with any 

given act or accumulation of acts which, in the judgment of the 

committee, are severe enough to reflect discredit on the Congress.’’ 154 This provision serves ‘‘as a safeguard for [ ] the House 

as a whole.’’ 155

The Investigative Subcommittee concluded that the Code of Ethics for Government Service, which is applicable to Members and 

employees of the House, is also implicated in this matter.156 In parVerDate Aug 04 2004 08:49 Oct 06, 2004 Jkt 096212 PO 00000 Frm 00046 Fmt 6659 Sfmt 6602 E:\HR\OC\HR722.XXX HR722
39 

tions adopted by an Investigative Subcommittee against a Member, and that led to the expulsion from the House of that Member.). 

ticular, Clause 5 of the Code of Ethics for Government Service provides that ‘‘[a]ny person in Government service should . . . [n]ever 

discriminate unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not; and never accept 

for himself or his family, favors or benefits under circumstances 

which might be construed by reasonable persons as influencing the 

performance of his governmental duties.’’ In addition, Clause 9 of 

the Code of Ethics for Government Service provides that ‘‘[a]ny person in Government service should . . . [e]xpose corruption wherever discovered.’’ 

The Investigative Subcommittee also took notice of 18 U.S.C. 

§201. This federal statute prohibits the offer or acceptance of bribes 

and gratuities by public officials, including Members of the House. 

The Investigative Subcommittee is aware that the Federal Bureau 

of Investigation was conducting its own inquiry into the allegations 

made by Representative Smith. Presumably, any violations of the 

cited federal statute in connection with this matter will be addressed by that federal agency in the normal course of carrying out 

its law enforcement responsibilities. 

C. CONCLUSIONS REGARDING THE CONDUCT OF CERTAIN MEMBERS

1. Representative Nick Smith 

The Investigative Subcommittee concludes that Representative 

Nick Smith is accountable for his conduct related to his vote on the 

Medicare Prescription Drug Act, including his making of statements that impugned the reputation of the House of Representatives. The excesses of Representative Smith’s rhetoric—initially 

made public in a press statement issued the day after the vote on 

the Medicare Prescription Drug Act, but continuing in subsequent 

press statements and press interviews—cannot be excused either 

by personal exhaustion or anger he may have felt following the 

vote on the Medicare Prescription Drug Act, or by his emotional attachment to his son and his personal belief that his vote in opposition to that legislation might have negative consequences for his 

son’s congressional candidacy. Indeed, as discussed in this Report, 

the record indicates that Representative Smith’s overstated account 

of events began as early as the evening before the vote during a 

gathering with his colleagues at the Hunan Dynasty restaurant. 

While this Report addresses the Investigative Subcommittee’s 

significant concerns about improper statements made by certain 

Members to Representative Smith, it is Representative Smith who 

is responsible for making unsupported assertions in reacting to 

communications made to him related to his vote on the Medicare 

Prescription Drug Act. While some highly charged language or exaggeration can be excused in the wake of intense pressure to vote 

for or against a particular piece of legislation, Representative 

Smith went too far by making statements that erode public confidence in the integrity of this lawmaking institution, and by misleading the public with his assertion that he was offered $100,000 

for his son’s campaign in exchange for his vote in favor of the Medicare bill. The damage caused by Representative Smith to the reputation of the House was compounded by Representative Smith’s 

40 

157The record further indicates that the controversy may have been utilized for political purposes by Brad Smith to promote the cause of his congressional candidacy, with the possible result of further exacerbating the harm caused by Representative Smith’s publication of substantially unsupportable allegations. 158The Investigative Subcommittee notes that Representative Smith is retiring from the 

House at the end of this Congress. Due to Representative Smith’s retirement, the Committee 

will lose jurisdiction over Representative Smith at the end of this Congress. Accordingly, as a 

practical matter, there is insufficient time remaining in the current Congress for an Investigative Subcommittee with expanded jurisdiction to complete the steps necessary under Committee 

Rules for Representative Smith to be charged formally with violations of the Code of Official 

Conduct, and to obtain sanctions as appropriate for such violations. 

continued publication in various media outlets of allegations that 

were unsupported by events as they actually occurred.157

The Investigative Subcommittee found that Representative 

Smith’s press statement of December 4, 2003 (Exhibit 8)—in which 

he stated that ‘‘no member violated any ethical rule’’—was not a 

mitigating act. Indeed, that statement did not retract fully his earlier allegations and, further, in the statement Representative 

Smith continued to suggest publicly that he had been offered ‘‘substantial and aggressive ’support’ and ’endorsements’’’ by ‘‘interested 

groups.’’ 

Even if a reasonable basis existed for all the statements made by 

Representative Smith regarding his vote on the Medicare Prescription Drug Act, Representative Smith did not act in a responsible 

manner in seeking redress for the alleged improper conduct he believed he had witnessed. As noted, the Code of Government Ethics 

obligates Representative Nick Smith, and all other Members, to 

‘‘expose corruption wherever discovered.’’ An allegation of ‘‘bribery’’ 

is an allegation of ‘‘corruption.’’ If Representative Smith believed 

that bribes had been offered and accepted, he was obligated under 

the Code of Ethics for Government Service to share the basis for 

his beliefs with the appropriate governmental authorities. At a 

minimum, Representative Smith was obligated to cooperate fully 

and candidly with the Committee on Standards of Official Conduct 

regarding his allegations. Instead, Representative Smith declined 

to cooperate fully, and required the Committee to authorize a costly 

and time-consuming investigation. 

In the view of the Investigative Subcommittee, were the Investigative Subcommittee’s jurisdiction to be expanded to address the 

specific conduct of Representative Smith that is described in this 

Report, his conduct could support a finding that Representative 

Smith violated House Rule 23, Clause 1, which requires Members 

to conduct themselves at all times in a manner that shall reflect 

creditably on the House. 

However, even though the Investigative Subcommittee concluded 

that Representative Nick Smith did not meet the standard of conduct required of Members, the Investigative Subcommittee does not 

recommend that its jurisdiction be expanded pursuant to Committee Rule 19(d) and the resolution adopted by the full Committee 

on March 17, 2004. Such a step—required to obtain a formal sanction under House and Committee rules—is not justified by the circumstances and facts presented, and is outweighed by the interest 

in bringing this matter to closure.158

41 

2. Representative James T. Walsh and Representative Randall 

‘‘Duke’’ Cunningham 

The Investigative Subcommittee concluded that the statements 

made by Representative Jim Walsh and Representative Randy 

‘‘Duke’’ Cunningham that referenced the candidacy of Representative Smith’s son were inconsistent with the civility generally expected of Members during a vote on the House floor. Nonetheless, 

it is not the view of the Investigative Subcommittee that either of 

these Members violated any rule within the jurisdiction of the 

Committee. To the extent that the comments made by these Members were regrettable, the Investigative Subcommittee concluded 

that such a finding was mitigated by the intensity of the circumstances, as well as by the personal, unsolicited, and independent apologies these Members made to Representative Smith in 

the days following the vote on the Medicare legislation. Further, in 

separate, candid testimony under oath before the Investigative 

Subcommittee, both Representative Cunningham and Representative Walsh acknowledged their conduct, and expressed contrition 

and regret for the statements they made to Representative Smith. 

3. Representative Candice Miller 

In contrast to its conclusions regarding the statements made by 

Representative Cunningham and Representative Walsh, the Investigative Subcommittee viewed differently the statements made by 

Representative Candice Miller to Representative Smith during the 

vote on the Medicare legislation. Representative Miller’s interaction 

with Representative Smith can fairly be characterized as a specific 

and unprovoked threat of retaliation against Representative Smith 

because of his vote in opposition to the Medicare Prescription Drug 

Act. Given Representative Miller’s status as a well-known figure in 

Michigan politics, from the mindset of Representative Smith, Representative Miller could possibly have had a deleterious impact on 

Brad Smith’s candidacy. Representative Miller never sought to 

mitigate her conduct by apologizing to Representative Smith, or by 

otherwise expressing contrition for her conduct. The Investigative 

Subcommittee concluded that Representative Miller’s statements to 

Representative Smith on the House floor were improper and contributed to his decision to make his public allegations of alleged 

misconduct related to his vote on the Medicare Prescription Drug 

Act, and therefore Representative Miller shares a portion of the responsibility for a course of events that risked impugning the reputation of the House of Representatives. 

In the view of the Investigative Subcommittee, Representative 

Miller’s conduct could support a finding that she violated House 

Rule 23, Clause 1, were the Investigative Subcommittee’s jurisdiction to be expanded to address Representative Miller’s specific conduct in this matter. The Investigative Subcommittee, however, does 

not recommend that its jurisdiction be expanded regarding Representative Miller’s conduct. While Representative Miller committed a discrete violation of the rules, there was no evidence adduced of a pattern of misconduct. The Investigative Subcommittee 

concludes that further proceedings are not necessary to carry out 

the full Committee’s oversight responsibilities. 

42 

159See, e.g., 18 U.S.C. § 201. 

4. Majority Leader Tom DeLay 

It is not controverted in this matter that Majority Leader Tom 

DeLay offered his personal endorsement of Brad Smith in exchange 

for Representative Nick Smith’s vote in favor of the Medicare Prescription Drug Act. This offer was made personally by the Majority 

Leader to Representative Smith, most likely during a vote on November 21, 2003, on a matter unrelated matter to the Medicare 

Prescription Drug Act. The Investigative Subcommittee concludes 

that the interaction between the Majority Leader and Representative Smith, in significant part, precipitated the public allegations 

by Representative Smith that ultimately led to this inquiry. At the 

time the offer was made, Representative Smith believed that the 

endorsement of his son by the Majority Leader, combined with the 

publicity and substantial financial support for his son’s campaign 

that Representative Smith believed would follow the Majority 

Leader’s endorsement, would greatly assist, if not assure, his son’s 

election in the primary held on August 3, 2004. 

The Investigative Subcommittee deliberated extensively over the 

ramifications of the Majority Leader’s conduct in this matter. It is 

well-settled that the process of garnering a majority of legislators 

for the passage of legislation in a legislative body involves a process of political compromise and coalition-building through offers of 

reciprocal official support among fellow legislators. Such practices 

are common in the functioning of a representative democracy. 

There are limits, however, to the methods that may be used to 

bring legislators of different views together to achieve action. For 

example, the ‘‘corrupt’’ offer or acceptance of ‘‘things of value’’ such 

as remunerations, gifts, or other like benefits to a legislator is longprohibited conduct.159 By contrast, the practice of what some have 

termed ‘‘log-rolling’’ is a longstanding and accepted part of the legislative process. The essence of this practice involves compromises 

based on legislative or official acts or programs within the official 

government process. In other words, under most circumstances it 

is an accepted practice for legislators to trade legislative votes to 

achieve policy goals or if to do so would serve the interests of constituents. 

The above-described practice is well-established in the House; 

there is nothing improper about a Member’s conditioning support 

for particular legislation on, for example, future consideration by 

another Member of an official matter of importance to that Member’s constituents or legislative agenda. It is also a long-established 

and recognized practice to seek to persuade a Member to vote a 

certain way on proposed legislation on the basis of maintaining 

party discipline. An appearance of impropriety might be created, 

however, if support for legislation were linked to a personal benefit, 

such as the promise of one Member to provide another Member 

with goods or services. Such incentives cannot be used to influence 

voting behavior. 

Such is the conclusion reached by the Investigative Subcommittee regarding the statements by the Majority Leader to Representative Smith in this matter. The promise of political support 

for a relative of a Member goes beyond the boundaries of maintaining party discipline, and should not be used as the basis of a barVerDate Aug 04 2004 08:49 Oct 06, 2004 Jkt 096212 PO 00000 Frm 00050 Fmt 6659 Sfmt 6602 E:\HR\OC\HR722.XXX HR722
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160The Investigative Subcommittee reached a similar conclusion regarding the conduct of Dan 

Flynn in this matter. As noted, Mr. Flynn serves as Deputy Chief of Staff in the Office of the 

Majority Leader, and he stated during an interview with Investigative Subcommittee counsel 

that in this capacity he contacted Jason Roe on November 21, 2003 to ascertain information 

about primary election candidates in the Seventh District of Michigan. During his interview, he 

stated that the purpose of the call was to assess whether the Majority Leader’s endorsement 

of Representative Smith’s son in that election could be used to obtain Representative Smith’s 

vote for the Medicare Prescription Drug Act. To the extent that Mr. Flynn may have contacted 

Jason Roe, no evidence was adduced that Mr. Flynn undertook this action at the request or direction of the Majority Leader. Under the circumstances presented, the Investigative Subcommittee did not find that Mr. Flynn violated House rules. Nonetheless, in the view of the Investigative Subcommittee, it is not appropriate for congressional staff to research the status of 

congressional election contests for the purpose of obtaining information to influence a Member’s 

vote on pending legislation. 

gain for Members to achieve their respective goals. The endorsement of a political candidate is not related to the functioning of 

government, and the promise of such an endorsement is not a proper offer, and therefore should not be made or accepted, in exchange 

for a vote in favor or against a particular piece of legislation. While 

the political consequences of a Member’s vote on legislation are 

usually inherent and exist even if unspoken, the use of political incentives to obtain passage of legislation, or the mixing of political 

and official incentives to obtain such a goal, risks undermining the 

confidence of the public that legislation was supported or opposed 

by Members on the basis of the interests of the public, and no other 

interest. 

Accordingly, the Investigative Subcommittee concludes that it is 

improper for a Member to offer or link support for the personal interests of another Member as part of a quid pro quo to achieve a 

legislative goal. In the view of the Investigative Subcommittee, depending on the circumstances, such conduct may violate House 

Rule 23, Clause 1. Another provision implicated by the acceptance 

of such an improper offer is Clause 5 of the Code of Ethics for Government Service, which provides that ‘‘[a]ny person in Government 

service should . . . [n]ever discriminate unfairly by the dispensing 

of special favors or privileges to anyone, whether for remuneration 

or not; and never accept for himself or his family, favors or benefits 

under circumstances which might be construed by reasonable persons as influencing the performance of his governmental duties.’’ 

(Emphasis added). 

The issues raised by the conduct of the Majority Leader in this 

matter are novel in that conduct of this nature and the implications of such conduct have never before been addressed or resolved 

by the Committee on Standards of Official Conduct. Indeed, the 

Majority Leader’s testimony indicates that he did not believe he 

acted improperly under House rules during his encounter with 

Representative Nick Smith. In addition, the Investigative Subcommittee believes that the relevant facts related to the Majority 

Leader’s conduct—described in detail in this Report—already have 

been fully developed. In the view of the Investigative Subcommittee, these factors mitigate against further investigation and 

proceedings in this matter.160

D. ADDITIONAL RECOMMENDATIONS

The Investigative Subcommittee further recommends that the 

Committee adopt this Report as the Report of the full Committee 

and approve its dissemination to the House and to the public. It 

is the intention of this Investigative Subcommittee that publication 

44 

of this Report will serve as a public admonishment by the Committee to Representative Smith, Representative Miller, and Majority Leader DeLay regarding their conduct in this matter. The Investigative Subcommittee also intends that the publication of this 

Report will serve as an advisory for all Members, employees, and 

officials of the House that the linking of official actions with political considerations in the manner described in this Report is impermissible and violates House rules. 

EXHIBIT LIST

Exhibit 1: Rep. Nick Smith’s column dated 11/23/03 

Exhibit 2: Rep. Nick Smith’s press release dated 11/24/03 

Exhibit 3: Washington Post article dated 11/23/03 

Exhibit 4: Human Events Online column dated 11/26/03 

Exhibit 5: Column appearing in Chicago Sun-Times dated 11/27/03 

Exhibit 6: Slate.com article dated 12/1/03 

Exhibit 7: Transcript of Rep. Nick Smith’s WKZO-Kalamazoo radio 

interview on 12/1/03 

Exhibit 8: Rep. Smith’s press release dated 12/4/03 

Exhibit 9: Lansing State Journal article dated 12/5/03 

Exhibit 10: Letter from Chairman and Ranking Minority Member 

of Committee on Standards of Official Conduct to Rep. Nick 

Smith dated 12/8/03 

Exhibit 11: Letter from Rep. Nick Smith to Chairman and Ranking 

Minority Member of Committee on Standards of Official Conduct dated 12/17/03 

Exhibit 12: Washington Post article dated 12/23/03 

Exhibit 13: Detroit News article dated 2/12/04 

Exhibit 14: Letter from Chairman and Ranking Minority Member 

of Committee on Standards of Official Conduct to Rep. Nick 

Smith dated 2/13/04 

Exhibit 15: Letter from counsel to Rep. Nick Smith to Chairman 

and Ranking Minority Member of Committee on Standards of 

Official Conduct dated 3/5/04 

Exhibit 16: Letter from Investigative Subcommittee to Secretary 

Tommy Thompson dated 7/8/04 

Exhibit 17: Letter to Investigative Subcommittee from General 

Counsel of Department of Health and Human Services and accompanying statement from Secretary Tommy Thompson dated 

8/4/04 

Exhibit 18: Subpoena to Rep. Nick Smith dated 6/21/04 

Exhibit 19: Notes from Rep. Nick Smith’s diary calendar for 11/17– 

12/14/03 

Exhibit 20: Relevant portions of record of roll call votes for 11/21/ 

03 

Exhibit 21: Transcript of voicemail message left by Brad Smith for 

Rep. Nick Smith on 11/21/03 

Exhibit 22: Rep. Nick Smith’s schedule for 11/19–11/23/03 

Exhibit 23: Letter to Speaker J. Dennis Hastert from Rep. Nick 

Smith dated 11/23/03 

Exhibit 24: Excerpt from Walsh for Congress Committee report to 

Federal Election Commission disclosing contribution to Brad 

Smith for Congress on 12/11/03 

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