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Will Ethics Suggestions Be Real or Cosmetic?

The House ethics task force is hoping to release to the public its recommendations in the coming weeks. Regardless of what is rolled out, Reps. Mike Capuano (D-Mass.) and Lamar Smith (R-Texas) will surely proclaim them “new and improved.” So what will be the telltale signs of whether the task force recommendations are serious and substantive or whether they are just cosmetic changes intended to gussy up a failed process that has lost its moral underpinnings?

Key Question No. 1: Who will conduct the substantive investigations, and will they have meaningful powers (and staff) to do so?

Recent reports indicate the task force is considering establishing an outside panel of four to six members equally appointed by the Speaker and the Minority Leader. A number of reform groups have supported a similar “Office of Public Integrity” model that would perform the investigations and leave the adjudicatory function to the Committee on Standards of Official Conduct, as the ethics committee is formally known. It is unclear, however, exactly what power this outside panel will have.

One report indicates the newly created panel’s job would be to receive outside complaints and recommend which complaints should be dismissed as frivolous and which ones should be sent on to the ethics committee as unresolved.

Such a ministerial “Office of Frivolous Complaints” would do little to substantially change the ethics process.

While some Members might find this model attractive because it provides an expeditious means of eliminating bothersome complaints, it could also, if the bar is set too low, devalue the meaning of forwarding a complaint to the ethics committee. All the outside panel would do is screen out entirely frivolous complaints. Everything else would be handled by the committee under procedures very similar to the current ones — which is no real change to the process.

One way to determine whether an outside panel is essentially ministerial is to see whether such a panel has any meaningful investigatory power, especially whether it has access to subpoena power. To have any teeth, the panel should be able to request that the chairman and ranking member of the ethics committee issue subpoenas. Any denial of such a request should be a matter of public record. An outside panel with no access to subpoena power, with no power to conduct more than a facial review of the credibility of the complaint, will by design turn into a ministerial office, i.e., window dressing, especially since the power to determine whether a rule has been violated and to impose appropriate punishment remains with the committee. And the ethics process will remain broken.

Key Question No. 2: Who will make up the outside panel?

A panel with an equal number of Democratic and Republican appointees sounds eerily reminiscent of the Federal Election Commission and does not bode well for an effective ethics process. The FEC, also known in some circles as the “Failure to Enforce Commission,” often deadlocks on key issues on partisan grounds. An effective panel should have an odd number to avoid deadlocks and should be filled by retired administrative law judges or others of similar background and training.

The panel should not be dominated by former Members or their proxies. A panel dominated by former Members will undermine its public credibility by creating the appearance that former Members of “the club” are protecting their own. Filling the panel with party hacks presents the same problems and will only damage the body’s public credibility. That’s basically what has happened at the FEC.

Key Question No. 3: Will the task force make recommendations that seem meritorious but fail to get to the heart of the problem?

Falling into this category would be a recommendation to change the current House rule that prevents outsiders from filing ethics complaints. Such a change is certainly overdue, and important, but it is no cure-all. The Senate currently allows ethics complaints from any source, but that has not particularly enhanced the credibility of the Senate ethics process. The most important power in the Congressional ethics process is the ability to initiate and conduct a complete inquiry based on information of which the committee becomes aware, regardless of the source. So permitting outside complaints is important, but the ability to conduct a meaningful investigation is vital.

The task force also may try to overemphasize a recommendation to increase transparency in the ethics process. Here again, it’s hard to criticize a proposal calling for more transparency of the process. But transparency alone will not cure the problems with the current dysfunctional ethics process. Professional investigatory powers are needed that will ensure the process produces fair and serious adjudications of ethics complaints.

The current ethics process is conducted in secret with a resulting lack of accountability. Ethics complaints today enter a “black hole” that is intended to “protect” Members, but instead mostly serves to undermine the process’s public credibility. There are times when secrecy is warranted, but the current system has gone overboard. As a result, the public today sees the ethics committee as a place where allegations of wrongdoing go to die a quiet death.

Speaker Nancy Pelosi (D-Calif.) certainly deserves credit for launching this effort to review the House’s ethics enforcement process as well as for enacting strong, new gifts rules and shepherding through important improvements to lobbying disclosure laws against the wishes of a vocal segment of her Caucus. But even the best rules can be rendered meaningless without effective enforcement.

Because it is unclear when there will again be the political will inside Congress to tackle ethics enforcement, it is important for the Speaker to ensure that this current task force gets it right. Ultimately, the decision is hers, not the task force’s, and she has to take responsibility for whether meaningful change is adopted. Voters in November spoke loudly and clearly that they wanted a cleaned-up Congress, and the establishment of a meaningful ethics process will begin to restore confidence that Congress really does intend to end the “culture of corruption.” When the task force recommendations are unveiled, how the key questions noted above are answered will reveal the true nature of the task force’s work. Then we will know whether the recommendations merit support or are an effort to put lipstick (and a little rouge) on a pig.

Meredith McGehee is the policy director of the Campaign Legal Center. She also heads up McGehee Strategies, a public interest consulting business.

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