Ethics Committee’s Shortcomings On Display

Posted July 19, 2011 at 6:34pm

Believe it or not, there is more going on in Congress than posturing and negotiating over the debt limit. Before I get back into that morass, I do want to address another mess: the story this week that the House Ethics Committee was knee-deep (make that neck-deep) in controversy over the case of Rep. Maxine Waters (D-Calif.).

According to Politico, the controversy gripped the committee before last year’s election when the seeming entente between Chairwoman Zoe Lofgren (D-Calif.) and ranking member Jo Bonner (R-Ala.) broke down after Lofgren suspended two staffers working on the case, Morgan Kim and Stacy Sovereign. Bonner strenuously objected, and everything froze.

The documents from last year allegedly show that former committee Staff Director Blake Chisam warned Lofgren that the two staffers had inappropriately given privileged information about the case to Republican Members, withheld some evidence from Waters and her lawyers and improperly accessed information from other staffers’ computers. The two staffers, in turn, accused Chisam of trying to protect Waters and Rep. Charlie Rangel (D-N.Y.), who was eventually censured by the House.

When Lofgren tried to dismiss Kim and Sovereign, Bonner blocked her, and the two were placed on paid administrative leave. When Bonner became chairman in January, he tried to retain them, and the Democrats blocked him from doing so.

Lofgren is no longer on the committee, and most of the members are new, but it is clear — whatever the truth of any of the allegations — that the ethics process in the House descended into partisan distrust, bickering and worse, and now has jeopardized any movement forward on the Waters case.

There is no easy answer to the problems that are always there in a body that has the responsibility to police itself. Times when the two parties get along in the process usually result in an “old-boy network” that protects friends and colleagues from punishment or humiliation. Times when the parties do not get along can sometimes result in the same outcome, with a tacit “mutually assured destruction” dynamic in which neither side will pursue an ethics case against someone from the other party for fear it will unleash a nuclear ethics war. Or, as with the Waters case (and possibly, the leaked documents suggest, the Rangel case), they can result in partisan jockeying over an explosive set of charges.

The lowest point ever for the ethics process came in 2005, when a Republican-led Committee on Standards of Official Conduct, as the panel was then known, did its job without regard to partisanship and recommended several admonishments of then-Majority Leader Tom DeLay (R-Texas).

Then-Speaker Dennis Hastert (R-Ill.) responded by firing Chairman Joel Hefley (R-Colo.) and dismissing two other Republican members of the committee who had done their jobs — Kenny Hulshof (Mo.) and Steven LaTourette (Ohio) — and in the process stained the committee and the integrity of the House. We are not near that low point now, but this is not exactly a reassuring set of revelations.

Because of the inherent predicament here, and in the context of the poisonous partisan atmosphere in contemporary politics, I was heartened when the House, by the narrowest of margins, created the Office of Congressional Ethics in the 110th Congress to improve the integrity of the process and the public’s confidence in it. 

The only problem was the OCE was made quite weak, without any ability to issue or get issued subpoenas and with no ability to assist the Ethics Committee in moving forward on ethics cases when it passed a threshold to merit further investigation. Sadly, the one area in which Lofgren and Bonner were entirely united was in their disdain for the work of the OCE, and the committee and the office were at loggerheads for much of the 111th Congress.

I was deeply fearful that when the House Republicans moved into the majority this year, they would eliminate the OCE or weaken it so much that it would be utterly meaningless. Thanks to the efforts of many tea party activists around the country, incoming Speaker John Boehner (R-Ohio) did not change its makeup or its role, despite his vote against creating the OCE in the first place.

Boehner, as I have written before, deserves credit for picking superb Members for the office, all of whom are still in place and continuing to work in a refreshingly constructive, nonpartisan and bipartisan way, with virtually all decisions to recommend further action against Members or to clear the slates done in a unanimous fashion.

Boehner and Minority Leader Nancy Pelosi (D-Calif.) — who also made superb choices for the office — should now step in before this Waters embarrassment gets worse and hits a House that is already at a nadir in terms of public approval.

Two steps are necessary.

First, the Waters case needs an independent counsel to carry it forward in the committee: Someone of impeccable integrity, no personal ambition to use the  case as a personal springboard, an understanding of how Congress works and a clear ability to transcend partisan feelings. There aren’t many out there with those qualities, but they do exist.

Second, it is time to revisit the OCE and consider strengthening its role. One area is to allow the chairman and ranking member of the Ethics Committee — or the Speaker and Minority Leader — to issue subpoenas on the OCE’s behalf in rare cases where an important investigation is being impeded by a key witness’s refusal to testify or provide relevant information. A second is to consider a role for OCE members or staff to present evidence directly to Ethics Committee members when an investigation reaches the stage that the Waters case has.

Once again, the ethics process is broken and threatens the integrity of the House. Once again, it is time to act.

Norman Ornstein is a resident scholar at the American Enterprise Institute.