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Why Subpoena Power Is Key to Real Ethics Reform

As he reminds everyone who asks, it was not an enviable task Rep. Mike Capuano (D-Mass.) undertook heading up the House ethics task force, but all indications are that he has come up well shy of the mark. As Norman Ornstein pointed out in his Dec. 5 column (“New Ethics Proposal Isn’t Perfect, but It’s a Solid Step Forward”), the task force’s recommendations, which are already seven months late, will be missing a critical component — subpoena power.

The power to issue subpoenas is the defining factor that will determine for many of us whether the proposed changes offer enough worthwhile improvements to the current discredited ethics process or whether they fall short of the mark. We were pleased to see that the absence of it troubles Mr. Ornstein as well. Why is this so? The answer is that without subpoena power, or at least access to it, the proposed new Office of Congressional Ethics becomes little more than a ministerial office to filter media reports.

In the best of all worlds, the new office would have the power to conduct real investigations and provide the Committee on Standards of Official Conduct with a bill of particulars that included the results of investigations, the list of rules involved and a conclusion as to whether there was reason to believe an ethical violation may have occurred. The ethics committee would then adjudicate the case, deciding if House rules had been violated and if so, administer the appropriate punishment.

But it is clear that’s not going to happen — largely because such a process scares the daylights out of many Members of Congress who believe it would be used by their political opponents to tar them with allegations of wrongdoing. By being out of the control of the Members themselves, they worry the office could run amok and become another tool for political opponents to make Members’ lives miserable and/or threaten their re-election.

So instead, the Task Force has designed an office that is basically charged with ferreting out allegations from the kooks, the crazies and the gadflies that make the news. And just for the record, since the 1997 “improvements” to the ethics process, the kooks, crazies and gadflies (as well as every other American citizen) can no longer file ethics complaints in the House as they can in the Senate. To what degree the new office would be able to actually conduct an inquiry into the merits of an allegation is left unclear, which is a real problem from our point of view.

Without a subpoena to respond to, what Member or even staffer could be expected to respond to the office in a timely manner with substantive information? Without subpoena power or access to it, the office can be ignored in its efforts to interview people and obtain documents that may be central to the matter at hand. Its “findings of fact” are likely to be limited to information that is already publicly available, is one-sided in favor of the Member, is simply incomplete or a combination of these. Subpoenas produce hard facts, and facts enable decision-makers to determine whether rules and laws have been broken.

We know from past experience that Members have been able to manipulate the ethics process. Those favoring a subpoena-less process argue that anyone who knowingly lies to Congress may be subject to prosecution. But that’s a dodge. Congress understands the importance of subpoena power in conducting any serious investigation. That power is available to all Congressional committees that conduct investigations.

Moreover, providing incomplete information or being uncooperative to an ethics inquiry are not violations of the criminal statutes, so Members can do so with impunity. Being unresponsive, undertaking a drip-by-drip response (sometimes called “slow walking”) is a carefully calculated strategy, often utilized by those with something to hide.

Before the task force recommendation comes to the full House, Speaker Nancy Pelosi (D-Calif.) can and should rectify this problem. If full subpoena power for the office is simply too much for a majority of Members to swallow, the new office at least should be provided with access to subpoenas through the chairman and ranking member of the full ethics committee, who in turn would actually issue such subpoenas. If the office’s request for a subpoena was turned down by the ethics committee, this information would be part of the report from the office made public at an appropriate time.

Without the ability to prevail on Members, staff and others to respond to requests for information, the new office runs the risk of simply becoming a bump in the road — yet another minor hurdle to overcome for anyone facing allegations of misconduct. Access to subpoena power is essential for the office to do an effective job of sorting out the facts and determining whether a recommendation should be made to the ethics committee to conduct an investigation.

In the absence of real investigatory powers, the new office’s ability to “find facts” would be severely limited. And “finding out all of the facts” is nearly impossible when one hand is tied behind your back. The fact that the new office would have a free hand only to dismiss allegations after its limited fact-finding inquiry shows that the task force intends for the office to be little more than a paper tiger.

The scale of justice in this one-sided approach is heavily weighted toward protecting Members, not toward protecting the institution and the public. Many Members may not like it now, but honest and open government is what the Democratic leadership promised and what voters demanded at the polls in 2006. The bill is now due and should be paid, and part of that price must be access to subpoena power for the new body.

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