Capuano took his charge from the Speaker seriously, and he and his task force have come up with a plan that the House will soon consider. I must confess that I am not an entirely disinterested analyst or observer here. My colleague Thomas Mann and I testified early on in front of the task force and have had an ongoing dialogue with Capuano over several months as the recommendation took shape, going through a series of back-and-forth refinements as the chairman tried to juggle the demands of Members on both sides, his own skepticism about reform, and the need to fulfill his fiduciary responsibility to the House and to the Speaker.
The recommendation that emerged is not perfect, and it has one serious gap, which I will get to in a moment. But it is a solid and meaningful step forward, a contribution that for the first time creates an opening for a real, independent screening process to weed out frivolous allegations from real ones, bring a credible transparency to the ethics process and force the ethics committee to do the job it is supposed to do: take serious and real allegations and determine whether they require some form of sanction or punishment for the alleged violator.
The panel would consist of six members jointly appointed by the Speaker and Minority Leader, with staggered four-year terms (a limit of two for any members). It has reasonable standards and thresholds for the group to consider potential ethical violations, with reports sent to the ethics committee laying out the facts of the group’s investigation alongside the relevant rules and/or laws. There are reasonable time limits for the ethics committee to act on the report — and importantly, provisions that would eventually require release of the independent panel’s report to the public if the ethics committee simply sat on it.
This panel would be able to move quickly to clear Members’ names if they are being attacked unfairly, just as it could move to make sure that serious questions raised about the conduct of a lawmaker would get real scrutiny with the credibility that comes from its independent status. It would act on its own, not accepting complaints from the outside (a provision decried by some, but not at all a problem — the key is having the right kinds of members for the panel, who would have the integrity and fortitude to act to protect the larger integrity of the institution and the political process).
The gap in the recommendation is the lack of any way for the panel to persuade witnesses to testify or give statements to it. In many cases, people with knowledge of misbehavior will not want to tell about it — because of their own culpability, out of friendship or because they are staffers to the alleged miscreant with their jobs or loyalties on the line. Some of them would tell their stories if they had an excuse — they made me do it, I had no choice, I was subpoenaed. But this panel has no subpoena authority.