One of the most significant advances in the 110th Congress was the passage earlier this year of a lobbying and ethics bill. Reform groups were ready for the usual — a modest, diluted show package, making no meaningful changes — but were pleasantly surprised that the bill was serious and had real teeth. Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Harry Reid (D-Nev.) took seriously their pledge to make real change to counter the culture of corruption, and got help from members of both parties.
That was the good news. The bad news is that the change was incomplete. A key piece was missing: action to make a nonexistent ethics process in Congress something meaningful. The decline and fall of the ethics process was and is a core part of the problem — if Members and staff know there is no chance that any miscreancy or ethical slippage will be held accountable, there will be more miscreancy and more ethical slippage.
Congress has long struggled with the deeper problem of a body charged by the Constitution to police itself, with the inherent difficulties both of asking people to oversee and perhaps punish their friends and colleagues, and of treating Members fairly in an environment filled with tough partisans and ambitious people eying rivals ahead of them on the ladder to power. The need to find a better balance has been evident to many of us for a long time — in fact, the first time I addressed in Roll Call the need for some independent ethics element, consisting of former Members and staff, was more than 15 years ago, in January 1992.
Sen. Barack Obama (D-Ill.) and several of his Senate colleagues saw that need clearly when ethics and lobbying reform first came up, but their plan to create an independent investigative arm for the Senate Ethics Committee was roundly rejected by the Senate. The House promised to address it separately, through a task force chaired by Rep. Mike Capuano (D-Mass.) created by Pelosi in late January of this year.
The appointment of Capuano was not received with glee by most reformers. He is a blunt, plain-spoken pol who revels in the gritty reality of the legislative process and views reform generally as far removed from the grit and the reality. Reformers’ skepticism was re-enforced when the task force took its time coming up with a plan and got a lot of flak along the way for delays. But the wait was neither a plot to wait out any zeal for change nor a way to craft another sham proposal.
As much as anything, the long time it took to construct a plan was due to the resistance of many, if not most, House Members to any change that might cause them to lose control of their lives and careers, and a fear of creating another nightmare like the Independent Counsel statute, with rogue prosecutors running amok.
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.
Many of us, understanding the sensitivity of Members to the independent counsel-type threat, suggested an indirect access to subpoenas — letting the independent panel go to the ethics chairman and ranking member to request a subpoena if they needed to talk to an important and recalcitrant witness. There are easy ways to make that work under Congressional rules, perhaps involving one of the ethics committee members in the questioning. But that effort failed. The panel can identify recalcitrant or uncooperative witnesses in its reports, and recommend that they be subpoenaed subsequently by the ethics committee, but it would be better if there were more teeth, and I hope the House adds a way to do this.
Even so, the task force recommendation is a big step forward, filling the gap left by the last reforms. The key to its success, of course, comes after it is adopted, and Pelosi and House Minority Leader John Boehner (R-Ohio) meet to pick the first appointees. They needn’t all be former lawmakers or staffers. I can think of some people with towering integrity, like Ken Feinberg, who headed the September 11th Victim Compensation Fund, or Harvard political theorist and ethics expert Dennis Thompson, who would be excellent.
But if Pelosi and Boehner picked former Rep. Joel Hefley (R-Colo.) to chair the panel, and added in people like former Sens. Bob Kerrey (D-Neb.) and Hank Brown (R-Colo.) and ex-Reps. David Skaggs (D-Colo.), Lee Hamilton (D-Ind.), John Brademas (D-Ind.), Mickey Edwards (R-Okla.), Ron Mazzoli (D-Ky.), Doug Bereuter (R-Neb.), Abner Mikva (D-Ill.) and Jim Leach (R-Iowa), we could have a real rejuvenation of ethical standards on Capitol Hill, and — miracle of miracles — perhaps even force the Senate to rethink its foolish opposition to the idea.
Norman Ornstein is a resident scholar at the American Enterprise Institute.
Rep. Eric Swalwell, D-Calif., walks on Broadway after a Future Forum with young entrepreneurs in the Flatiron District of New York City, April 16, 2015. Reps. Steve Israel, D-N.Y., Seth Moulton, D-Mass., and Grace Meng, D-N.Y., also attended.