In a rare, bipartisan move on Wednesday, the House Rules Committee asserted its historical role as institutional guardian and sent a half-baked ethics proposal back to the kitchen. The three-hour hearing was one of the best deliberative discussions in the committee I have witnessed in four decades and a proud moment for the House. The debate was civil yet intense as Members agonized over what would be in the best long-term interest of the House.
[IMGCAP(1)]The debate centered on the recommendations of the four Democratic members of the Special Task Force on Ethics Enforcement to create an independent House Office of Congressional Ethics. The OCE would conduct self-initiated reviews into possible ethics violations. The proposal was never put to a vote by the full task force, and the four Republican members consequently withheld judgment until Wednesday, when they presented an alternative to add four former lawmakers to the existing ethics committee and provide greater transparency and more deadlines in its processes.
The Democrats’ proposal unveiled in December would establish a six-member board of qualified citizens from outside Congress, appointed by the Speaker and Minority Leader. The OCE’s reports on alleged violations would be forwarded to the ethics committee for further action, without findings of guilt or innocence.
Reps. Mike Capuano (D-Mass.) and Lamar Smith (R-Texas), along with the six other task force members and staff, are to be commended for the long hours of hard work put into this project, regardless of how you view the final product. The prospect of an independent ethics office, though, has many Members understandably concerned. Fear of the unknown is a natural human instinct, especially when survival is involved. Members of Congress are truly representative humans in that regard, and political survival is their vital concern. That was certainly reflected when Rules Committee members expressed fears last week that a new ethics entity could reignite partisan ethics wars.
I have previously written in these pages in opposition to delegating any stage of the ethics process to an independent entity, not because it’s unconstitutional (it is not as long as the House has the final vote on punishment), but because it is an irresponsible abdication of Congress’ obligation to police its own and purge the institution of corrupt and destructive elements. The Constitution’s charge that each House “punish its Members for disorderly behavior” was primarily designed to plug the hole left by Members’ constitutional immunity from outside prosecution for misbehavior committed during legislative debates. Outsourcing even a part of that process runs contrary to that originally deemed necessity for internal self-discipline.
What if, though, the proposed independent ethics office is created? A review of the Democratic task force members’ proposal leads me to conclude that we can expect a more prolonged ethics process, a more duplicative one, and one that is bound to disappoint those who expected a lean, mean, perpetual House-cleaning machine (ethics enforcement as electoral politics by other means).
Keep in mind that the current ethics process is already considered by many to be too protracted with its two-tiered system of separate investigative and adjudicative units and time-consuming procedural safeguards designed to protect the accused. Layer onto that a new bureaucracy with a two-stage process of “preliminary” and “second-phase” reviews that could take up to three months, and the long haul becomes even longer. This screening process does not replace the ethics committee’s own review period of up to another three months once an OCE report has been forwarded to it. That means that up to six months could elapse before the Committee on Standards of Official Conduct determines whether the matter should be dismissed or sent to an investigative subcommittee. It could be over another year before final resolution.
The new process would not replace the ethics committee’s responsibility to receive and consider ethics complaints filed by Members since the OCE could not receive any formal complaints. Its preliminary inquiries would be initiated by any two board members (regardless of party). While it might seem that the new process would supplant the current ethics committee’s practice of initiating its own inquiries (absent a formal complaint), there is no such prohibition in the task force’s proposal (nor should there be). Consequently, there are bound to be at least brief periods of duplication and overlap between the two units over the same allegations.
Finally, there is the inevitable disappointment factor. The task force proposal is considerably watered down from what outside groups would prefer (an outside, independent counsel, thank you), and even from what the initial Democratic proposal called for. When it becomes apparent that the new bureaucracy is only producing further delays and duplication instead of a decisive new direction in handling ethics problems, the demands for further strengthening the process will be deafening.
The House should recognize up front that once the OCE is established it will not be abolished. Instead, it will become a launch pad for efforts to convert it into a truly independent counsel’s office with full subpoena authority, investigatory powers and the right to receive outside complaints. Let the executive branch’s experience with such unfettered investigative authority be a cautionary tale for Members’ bedtime reading. Sweet dreams.
Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.