Election Year Limits Ethics Office

While election-year restrictions on the Office of Congressional Ethics could create a bottleneck of its investigative referrals to the House, government watchdogs say the potential delays should not significantly impede the ethics process.

The OCE, tasked with reviewing potential rules violations and referring investigations to the House ethics committee, opened 25 inquiries in 2009, ultimately recommending 12 of those cases to the House panel for further review.

In the coming months, the OCE for the first time must work around blackout periods dictated by the election calendar — including Congressional primaries and general elections, as well as state and local races.

Under the House resolution establishing the OCE, the office is prohibited from forwarding any recommendations to the Committee on Standards on Official Conduct, commonly known as the ethics committee, in the 60 days before an election if the subject of an investigation is a candidate in that contest.

“It was part of the cautionary efforts that went into setting up the Office of Congressional Ethics,— said Public Citizen’s Craig Holman, one of the government reform advocates who advised the House task force that created the OCE’s framework.

“Many Members in the House feared that OCE would be used as a political electioneering tool against their elections,— Holman added, noting the blackout restrictions resulted from “a great deal of compromise.—

The OCE rules are similar to those that apply to the ethics committee, which prohibit the panel from accepting a formal complaint — which may only be filed by a Member — within 60 days of an election in which the subject of the complaint is a candidate.

Notably, such formal grievances are rare: Although Rep. Charlie Rangel (D-N.Y.) filed a complaint in 2008 calling for an inquiry into his own fundraising efforts on behalf of a City College of New York facility that bears his name, an informal truce has otherwise held since the 108th Congress, when then-Rep. Chris Bell (D-Texas) filed a complaint against then-Majority Leader Tom DeLay (R-Texas).

Aside from the prohibition on formal complaints, however, the ethics committee is not otherwise limited in its work during an election year. The panel is allowed to open new investigations and continue ongoing probes, and could even issue rulings if it opted to.

While the OCE is also permitted to continue its investigative work during the blackout phases, the 60-day hold could prevent the committee from issuing any referrals to the ethics committee — its primary function — for up to four months at a time in an election year.

In states with May primaries, for example, the blackout date would halt referrals from March to the day following the election. OCE referrals could then continue until the blackout period for the November general election begins in early September.

But in the handful of states with mid-September primaries, the OCE could be prohibited from referring investigations beginning in mid-July and extending through the day after Election Day.

If a Member were to lose a primary, however, the OCE could refer an investigation after the primary occurred.

In addition, the House resolution creating the OCE also allows the ethics committee to defer its consideration of any OCE referrals during the 60-day blackout periods.

The ethics committee is normally allowed up to 90 days to review an OCE referral — an initial 45-day period, plus an optional 45-day extension. But during an election year, the panel could potentially opt to take up to 150 days to make a decision on any investigation involving a candidate, if it were to utilize both the 60-day blackout period and the full 90-day review. At the end of the review period, the ethics committee is required to publicly release the OCE report, unless it opts to open its own investigation.

Sarah Dufendach, Common Cause’s vice president for legislative affairs, said the election year timelines shouldn’t hinder the OCE from its investigative role, even if it does create a temporary bottleneck for issuing referrals to the House.

“I think it means they can report at different times. I’m willing to bet that the OCE is not looking at it as a time when they’re sitting on their hands,— Dufendach said. “It does moderate when they file, but I doubt very much that it’s going to stop them from working. And the same should be true of the ethics committee.—