It would truly be disappointing if House leaders decide to undercut the approval they received in the aftermath of the enactment of the Honest Leadership and Open Government Act. But it looks as if that may be where they are heading.
Speaker Nancy Pelosi (D-Calif.) is now saying that she expects the Special Task Force on Ethics Enforcement, charged with exploring the creation of an outside enforcement entity, to complete its recommendations before Congress goes home in December. While the task force already has missed its May 1 deadline by five months, the real question is whether the wait will even be worth it.
Unfortunately, the tea leaves don’t look too encouraging. Current reports indicate that the recommendations may not be worth waiting for, which surely is a shame. It is especially regrettable because the lobby disclosure and ethics reform measure ushered into law by Pelosi merited applause.
When the Speaker announced the creation of the task force in January, she touted the House bill and rules changes but clearly recognized there was more to be done: “These strong rules are significant steps toward honest leadership; enforcing these rules is critical to ensuring every Member of Congress lives up to the highest ethical standard.”
Unfortunately, almost 10 months later it does not appear much more of import is in the cards. Even the best laws can be rendered meaningless if enforcement falls short. The current ethics enforcement schemes in Congress are woefully inadequate, and simply offering up window dressing will not change that underlying truth.
Last May, the Campaign Legal Center, together with six other reform groups, outlined for the Speaker the absolutely essential elements for an effective and publicly credible Congressional ethics enforcement process. These four elements are:
1. A new outside panel, an Office of Public Integrity, must have the authority to investigate allegations of ethics violations on its own initiative or on the basis of outside complaints filed with the panel. You cannot have an effective or credible outside panel if it is not allowed to investigate matters initiated on its own authority and if its only role is to filter outside complaints for the Committee on Standards of Official Conduct.
2. A new outside panel must have access to subpoena power in order to be able to conduct investigations, and it must have adequate staff resources to fulfill its responsibilities. The idea that the outside panel can conduct meaningful investigations without the availability of subpoena power flies in the face of reality and would deny the OPI the power that the House considers essential for its own committees to conduct investigations. The outside panel could be granted subpoena power by statute. Alternatively, it could be provided access to subpoenas in a manner similar to the way that the ethic panel’s investigative subcommittees currently are under Rule 19(b)(5), by having the chairman and ranking member of the full committee issue such subpoenas. In any event, the panel must have access to subpoena power to do an effective job helping to enforce the House ethics rules.
3. A new outside panel must be able to recommend to the ethics committee that it undertake proceedings on matters that the OPI has investigated. It makes no sense to create an outside panel and then prevent it from making recommendations to the ethics committee about potential violations that need to be investigated. This would neuter the OPI and turn it into a ministerial office whose role is simply to pass on matters to the ethics committee.
4. The ethics committee must be required to issue a report to the public on its findings and conclusions with regard to any matter the outside panel sends to the committee for further proceedings. The public has a right to know, with regard to any matter brought by the panel to the ethics committee for investigation, the reasons for the actions taken by the committee. There is no justification for the committee to take actions on such matters without explaining its findings and conclusions to the public.
Any proposal put forth by the task force must meet these most basic standards in order to be publicly credible. Without these four essential elements, any proposal to “improve” the ethics enforcement process will amount to little more than smoke and mirrors.
Pelosi fought long and hard against a combination of stiff opposition and status quo inertia from both parties to pass the lobbying and ethics changes. The Speaker and leadership made it happen by reminding Members of the promises to “drain the swamp” that returned the Democrats to power on Election Day.
Without the basic ethics enforcement standards outlined above, the changes already enacted will be undermined and tarnished. To avoid squandering a hard-fought victory, Democratic leadership must restore credibility to ethics enforcement process. And to do that they’ll have to remind Members now comfortable with the trappings of power that it is time once again to dance with the one that brought them.
Meredith McGehee is policy director for the Campaign Legal Center. She also heads up McGehee Strategies, a public-interest consulting business.