Varilek Cites Noem’s Flaws; GOP Responds with Bogus Senate Ethics Claims

Last updated on 2011.10.23

In their continuing effort to divert attention from Congresswoman Kristi Noem's absolute failure to do anything of substance in her first year in Congress, the South Dakota Republican Party and its mouthpiece blog Dakota War College attempt to manufacture controversy about one of her potential challengers.

Potential House candidate Matt Varilek spoke to a handful of Davison County Democrats in Mitchell Tuesday night. He said some negative things about Congresswoman Noem:

1. Varilek said Noem's acceptance of donations from Exxon, Chevron, Halliburton, et al. explains her support for continued subsidies to Big Oil.
2. He said Noem has failed to support Medicare, Medicaid, Pell Grants, water infrastructure, and other programs that help South Dakotans.
3. He said Noem has behaved in a partisan and polarizing fashion.
4. He said Noem was "reckless" in her siding with Republicans who threatened to shut down the government over the debt ceiling debate last summer.

These statements are no more provocative than comments Varilek made in his "I'm thinking about it" video in August. Each point is debatable. Noem defenders are welcome to step up and defend her from these charges.

But those saddled with (by?) Noem don't do that. Instead, the GOP and DWC accuse Varilek of violating Senate ethics rules. Varilek works as Senator Tim Johnson's economic development director. The GOP and DWC thus leap to the conclusion that Varilek is conducting partisan activity on the taxpayers dime. They demand that the "rogue Senate staffer" either resign from his job or prove that he's not guilty of violating the Hatch Act.

Hmmm... so what does the Hatch Act, to which the GOP press release links, really say? It says "less restricted federal employees" (and I assume Varilek belongs to this category, since the Republicans say he does... although page 140 of the Senate Ethics Manual says, "Nonetheless, the 'Hatch Act,' which until recently prohibited partisan political activity by federal civil service employees, never applied to congressional staff"*) "May not use their official titles or positions while engaged in political activity." Did Varilek use his official title or position in his appearance at the Davison County Dems' meeting? The GOP provides no evidence to that effect.

The Hatch Act says Varilek "May not solicit, accept or receive a donation or contribution for a partisan political party, candidate for partisan political office, or partisan political group." The GOP provides no evidence that Varilek solicited or accepted any money.

The Hatch Act says Varilek "May not engage in political activity... while the employee is on duty, in any federal room or building, while wearing a uniform or official insignia, or using any federally owned or leased vehicle." The GOP provides no evidence that Varilek's statements at Tuesday evening's event happened while he was on duty, in a government building, or driving a government car.

Sure, Varilek makes his living on the taxpayers' dime (actually 870,000 dimes!). But Varilek is as free to spend his salary on a tank of gas to drive to Mitchell and exercise his First Amendment rights as I am to spend my hard-earned taxpayer dollars as a public school teacher to pay for Internet service and write this blog. As long as we both engage in such activities outside of work, we're fine.

The Senate Ethics Manual agrees with me:

...the Ethics Committee has previously ruled that it is not improper for a Senate employee to engage in campaign activity on his or her own time so long as such activity complies with Senate Rule 41.1 that prohibits fundraising by most Senate employees for federal campaigns [Senate Ethics Manual, Chapter 6: Political Activity, 2003 edition, p. 139].

As for actually running for federal office, which Matt Varilek is not doing yet, the Senate Ethics Manual says this:

Senate Rule 41.1 limits the handling of federal campaign funds by Senate employees to designated staff. Pursuant to these restrictions, the Committee has previously held that a Senate employee is prohibited from forming a principal campaign committee pursuant to the Federal Election Campaign Act (FECA), and from receiving, soliciting, being the custodian of, or distributing funds in connection with his campaign for federal office except where the employee is a political fund designee and the employee's campaign committee is established and controlled by a Senator or group of Senators. Absent such an arrangement, the employee must leave the Senate payroll in order to run for federal office [Senate Ethics Manual, Chapter 3: Conflicts of Interest (Rule 37) and Outside Earned Income, pp. 85-86].

Varilek is no dummy. He can probably cite chapter and verse the Senate Ethics Rules governing his political activities on behalf of his employer, his party, and himself (high school debaters are particularly good at checking and citing rules like that). I am certain that if/when Varilek declares, he will dot every i and cross every t. Republicans will try to manufacture scandals, but Varilek will stick them with the awkward task of explaining what if anything Kristi Noem has done in Congress to help South Dakota.

*Update 2011.10.23 09:28 MDT: Varilek makes clear to Kevin Woster and the confused Tony Post that the Hatch Act does not apply to Congressional staffers.