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No Room For Cease-Fire On Ethics Cases

Recent news reports suggest that the current “cease-fire” on ethics complaints may be in jeopardy. This saber-rattling apparently is the result of allegations that a senior Republican Member directly or through staff sought to influence a trade association’s selection of its top lobbyist. In response to rumors that a Democratic Member may file a complaint with the House ethics committee to investigate this matter, Republicans have threatened their own complaints against Democrats as part of the political touché.

The current scenario muddles several concepts, all in the name of “ethics.” These include, for example, whether there has, in fact, been improper conduct; what action should be undertaken by the ethics committee; how to deal with a Member’s appropriate exercise of his duty to seek review and investigation of alleged improprieties; and what leadership’s role is in stemming the tide of political mudslinging. Add to this the issue of whether there should ever be an ethics cease-fire, and you have a menu for political turmoil.

First, there should never be a cease-fire regarding the oversight and enforcement of controlling rules and standards of conduct. To suggest that both parties have tacitly agreed not to pursue such matters against their opponents is offensive to the existence of the Committee on Standards of Official Conduct. Thus, the very essence of a cease-fire implies that both parties have consciously adopted a policy of benign neglect when it comes to ethics violations by Members or staff. In point of fact, such neglect can never be benign when it results in the degradation of the respect of the House as an institution.

Second, the concept of an eye-for-an-eye approach to filing complaints is problematic. This mentality accepts as a given that Members of the same party should acquiesce to, if not simply accept, the ethics improprieties of their same-party colleagues. If that is to be the case, then, except for a Member of the other party, who is left to file a complaint with the ethics committee? Outsiders and the public were removed from participating in the complaint-filing process as part of the last major ethics reform package.

Underlying all of this, of course, is the political ramification of a Member publicly filing a complaint with the ethics committee — particularly if it is against a Member from the other side. It is a sad but true commentary that one of the strategies adopted by certain party leaders during the past decade was to use the ethics process to paint the political opposition. The ethics committee — and the process it was to use and to protect — was relegated to but a tool in the political arsenal. In short, filing a complaint with the ethics committee was a scheduled stop along the campaign trail or the implementation of party strategy.

The results of this philosophy were both predictable and discomforting: The loss of all sense of collegiality and harmony between the two parties in the House. It should come as no surprise that the parties effectively ceased working together. One need only look at the record of those Congresses to reach conclusions regarding the respect given the institution as a whole, let alone the ability of Members of good faith to seek compromise with an intransigent and ethics complaint-filing-trigger-happy opponent.

That many of the major players in those years of internal turmoil have since retired or been retired by their constituencies is not regrettable. However, threats of rekindling an ethics war are regrettable and would effectively return the House to the negative environment that typified its character for much of the past decade. One can only hope that the current leaders have learned from the mistakes of their predecessors.

Indeed, the solution to all of this latest threat and counter-threat is quite simple. The House rules should be modified to prohibit the public announcement of the filing of a complaint, whether by the committee or the complainant. The ethics committee has, in recent years, shown itself to have matured and to have developed the ability to withstand being used as a political tool. If a complaint is justified, it should be filed and must be investigated — regardless of party or seniority.

Better yet, the entire concept that a complaint needs to be filed with the committee before it will review alleged improper conduct is at odds with the notion of an alert and informed ethics committee. The vast majority of investigations undertaken by the committee since its inception have been the result of news articles or other publicly available accounts detailing improprieties. Under this approach, all pressure (political and otherwise) would be removed from Members as to filing complaints against their colleagues, and all focus would be placed where it properly should be from the start — on the committee and its announcement as to whether an investigation has been initiated. This approach would, quite nicely, effectively end interparty gamesmanship and the underpinnings of cease-fire, or threats to break the truce.

But, if the process is to be kept unchanged and should a Member sincerely believe that unethical conduct has occurred, then there is a duty to report this to the ethics committee. If, upon review, the committee concludes the complaint to have been purely politically motivated or otherwise unfounded, it should penalize the filer, just as courts sanction litigants for malicious prosecutions.

For its own part, the ethics committee is well-equipped to filter the spurious charge from the substantive violation. Similarly, it also has the ability to determine when a filed complaint is the result of political opportunism or retribution.

Chairman Joel Hefley (R-Colo.) has shown himself to be free from political constraints in seeking to carry out his duties. His resistance to the recent change to the House gift rule stands as the most recent example of his belief in ethics and appearances over the shallow rationale advanced in support of the new rule.

So too, Rep. Alan Mollohan (D-W.Va.) is, by disposition and objectivity, ably suited to be the new ranking member. Having had the opportunity to work directly with Mollohan during his prior stint with the committee, which included investigations of the Speaker and a Minority Whip, a recommendation for the expulsion of a Member, and a host of other matters, I am comfortable that he, like Hefley, will not succumb to any attempted misuse of the ethics committee for political benefit. Both have the spine necessary to take on difficult tasks and, if need be, their own leadership in their pursuit of an appropriate outcome.

An ethics cease-fire should exist only when the ethics committee is unable to undertake its responsibilities with independence. Only under such circumstances is it necessary to restrain the filing of complaints for fear that the evaluator — the committee — will simply reflect the political mentality of the warring factions. (Indeed, the virtual meltdown of the ethics committee in the early 1990s underscores this point.) With strong and able leadership the committee can quickly dispose of unfounded, if not malicious, complaints. Eliminating all publicity from the process and adding a sanction for its attempted misuse will quickly result in ending the saber-rattling of recent weeks.

On the other hand, if the truce is to end, then some solace can be taken from the fact that a complaint will have to survive the scrutiny of Hefley and Mollohan before the committee’s time and resources will be wasted chasing imaginary mice down imaginary holes. The respective party leaders can choose either to ignore allegations of improper conduct or to engage in an eye-for-an-eye approach to the filing of complaints. Hopefully, neither course will be taken.

Ralph L. Lotkin is the former chief counsel of the Committee on Standards of Official Conduct.

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