The House ethics committee is slated to hold its first formal meeting in more than four months this week, just days after it disclosed the existence of an “informal fact-finding” investigation into the events surrounding the highly controversial Nov. 22 Medicare vote.
One member of the panel, speaking on the condition of anonymity, characterized the committee as “basically dormant” over the past 13 months. “We haven’t done anything during this entire Congress,” said this lawmaker.
House ethics Chairman Joel Hefley (R-Colo.) and Rep. Alan Mollohan (D-W.Va.), ranking member of the panel, want to know whether anyone tried to bribe Rep. Nick Smith (R-Mich.) before or during the Medicare vote, although they have not called for a full-blown investigation yet.
Smith, who is retiring after this session, originally alleged in numerous public statements that he was offered financial support for his son Brad Smith’s campaign for Congress if he backed the Medicare bill, but later backtracked and now refuses to discuss the issue. The ethics committee released a statement late Wednesday night declaring that it had initiated an “informal fact-finding” on the Smith case on Dec. 8, 2003.
The Committee on Standards of Official Conduct, as it is formally known, has not met with all 10 of its members since Oct. 1, according to several sources, and has not acted as a full body on any issue since organizing at the beginning of the 108th Congress.
The full ethics committee is now scheduled to meet Thursday. It is unclear if the Smith case will be brought up during that gathering.
In an interview just minutes before the committee released its announcement on Smith, Hefley defended the committee’s recent record, and insisted that he and Mollohan have been extremely diligent in policing the House. Hefley, citing confidentiality concerns, would not discuss the specifics of the Smith probe or any other issue under review by the committee.
“Mollohan and I meet often,” said Hefley, who added that they “may talk two or three times in one week, and then not talk at all for a couple of weeks. It all depends on what is going on.”
Hefley noted that the committee has not “had any hot issues to act on” recently and explained the lack of full-committee meetings to the fact that he does not “like to bother the Members if there is nothing for them to do.”
Hefley, though, angered some Democrats over a Jan. 21 comment he made on the Smith case that gave the impression that the ethics panel would not look into the matter unless a Member filed a formal complaint, something that has rarely occurred during a seven-year ethics truce between the two parties.
But there has been intense pressure from House Democratic leaders, especially Minority Whip Steny Hoyer (Md.), for a formal probe of the events surrounding the Medicare vote. Senior House Democratic aides predict one of their Members will file a complaint if the ethics committee does not fully explore the matter to their satisfaction.
The House GOP leadership, in a dramatic move, kept the vote open for nearly three hours on Nov. 22 as it targeted Members to back a $400 billion Medicare prescription drug bill. The bill eventually passed by a 220-215 margin, giving President Bush and the Republicans a tremendous legislative victory.
Smith, who voted “no” despite extraordinary lobbying efforts by the White House and his own party leaders, said in a statement on his official Congressional Web site the next day that “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.”
Smith also claimed that after being personally lobbied by Speaker Dennis Hastert (R-Ill.) and Health and Human Services Secretary Tommy Thompson, “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 working against Brad if I voted no.” Smith said his son told him to stay with his no vote.
In another official statement the next day, Smith said, “I got significant promises for help for [Bradley Smith’s] campaign and threats they’d work against him if I voted no.” Smith did not identify whom he was speaking of at that time.
On Nov. 27, columnist Robert Novak wrote, “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 they would make sure Brad Smith never came to Congress. After Nick Smith voted no and the bill passed [Rep.] Duke Cunningham [R-Calif.] and other Republicans taunted him that his son was dead meat.”
Smith used the $100,000 figure in an interview with a Michigan radio station on Dec. 1, although he later claimed Novak was the source for that detail and that “no exact figure was ever offered to me.”
Smith also told another Michigan reporter that, “Technically, in a legal description that I later reviewed on what a bribe is, probably it didn’t meet the legal description of a bribe.”
Smith and his office did not return calls for comment last week.
Hastert’s office also declined to comment on the issue, as did Majority Leader Tom DeLay (R-Texas). Neither Majority Whip Roy Blunt (R-Mo.) nor Chief Deputy Majority Whip Eric Cantor (R-Va.) or their staffs have been contacted by the ethics committee; neither has Cunningham and his staff.
Smith has said Hastert and DeLay themselves never made any threats or promises, although he offered no further specifics.
The question of what exactly an “informal fact-finding” constitutes is up to the ethics committee itself to decide.
“It’s whatever they want it to be,” said Ralph Lotkin, who has served on both sides of the table as the committee’s chief counsel, as well as a defense attorney representing lawmakers under scrutiny by the panel.
“A preliminary fact-finding is as superficial or as detailed as they choose to make it,” added Lotkin, who battled with the committee during a two-year period of “informal fact-finding” into allegations about his client, then-Rep. Earl Hilliard (D-Ala).
Undefined by House and committee rules, the scope of such preliminary investigations by ethics committee lawyers can be as wide and thorough as the top committee Republican and Democrat wants it to be and can go on for as long as those two lawmakers deem necessary.
And although the committee rarely publicizes such preliminary probes, the process is fairly customary. Rep. Corrine Brown (D-Fla.) was the subject of a year-long informal probe before the formal phase was authorized to examine allegations of improper gifts.
Prior to 1997, complaints filed by outside groups and lawmakers kept the panel’s members and staff busy. But when the House voted to shutter the ethics process and lawmakers began an unofficial truce, the authority of the ethics committee to self-initiate investigations took on greater importance.
Like nearly all of the ethics committee’s work, the entire process is done outside the public’s view. According to people familiar with the process, it can start with a simple letter signed by the committee leaders seeking information from a lawmaker about allegations of potential impropriety.
That was the case when Hilliard received a one-page letter on Dec. 29, 1997, asking him to respond to press allegations concerning financial irregularities with his campaign and nonprofit business operations.
Two weeks later, the committee followed up with a 10-page letter seeking answers to dozens of detailed questions about nearly every aspect of Hilliard’s campaign, business interests and financial dealings.
Lotkin objected vociferously to the informal inquiry and questioned the authority of the committee leaders to conduct such a wide-ranging probe under conditions that gave no formal guidance or protection to his client.
The response from then-chairman James Hanson (R-Utah) and ranking member Howard Berman (D-Calif.) was brusque.
“If the Committee adopted your rationale, it could investigate this type of activity only after it established an investigative subcommittee. We prefer to gather facts ourselves to determine whether such a step is necessary,” the two lawmakers wrote.
Much to the consternation of Hilliard and Lotkin, the informal investigation dragged on for nearly two years, culminating with the Sept. 23, 1999, vote by the full committee to establish a formal investigation led by a four-member subcommittee.
But that was only the beginning of the end. It was not until June 20, 2001, that the ethics panel finally completed its investigation and issued a letter of reproval to Hilliard for the financial misconduct.