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Just four years after Congress created an outside office to speed up House ethics proceedings, the House Ethics Committee has begun using a pre-existing rule to extend its review of cases past the deadline set by those who developed the guidelines on how the two bodies should work in tandem.
The delay in the resolution of cases referred to the Ethics Committee by the Office of Congressional Ethics has government watchdog groups and legal experts questioning whether the process has been weakened; others posit that the panel could simply be overworked and unable to complete its review in the time allotted.
Cases currently on the committee's docket that were referred by the OCE and have now reverted to a preliminary investigative stage that requires no further public disclosure include those of Reps. Vern Buchanan (R-Fla.), Alcee Hastings (D-Fla.), Jesse Jackson Jr. (D-Ill.) and Gregory Meeks (D-N.Y.).
"The pressure that was supposed to be created by the OCE to prevent cases from going into a black hole, over time, has gotten weaker and weaker," Campaign Legal Center's Meredith McGehee said.
Congress voted to create the Office of Congressional Ethics in March 2008 after a string of scandals that were exacerbated by a Committee on Standards of Official Conduct, which the Ethics panel was then called, that declined to meet. Then-Speaker Nancy Pelosi (D-Calif.) pledged to "drain the swamp" in part by establishing an outside entity to review allegations of Member misconduct. A bipartisan task force headed by Rep. Mike Capuano (D-Mass.) worked with a coalition of groups that included Public Citizen, Campaign Legal Center and U.S. PIRG for more than a year before recommending the creation of an independent office.
Some of the organizations working with the task force — Public Citizen and Campaign Legal Center included — advised that in order for an outside office to be effective, it should function as an investigative, prosecutorial-type body that referred its findings to the committee for adjudication and punishment. But the OCE was instead set up as the preliminary stage in a bifurcated investigative process that continues after its findings reach the panel.
Both bodies work on a timetable. When two members of the OCE's eight-member, nonpartisan board vote to start a preliminary review of a case, the office has about a month to decide whether the allegations merit more serious review. If three board members agree that they do, the probe enters a more serious 45-day review phase that can be extended an additional two weeks. At that point, if the office decides to recommend that the Ethics Committee review a case further, the committee has 90 days to either empanel an investigative subcommittee or release the OCE's findings.
In recent months, the committee has not cleared, sanctioned nor empaneled a subcommittee by the conclusion of the 90-day period in relation to the Buchanan, Hastings, Jackson and Meeks cases. Instead, Ethics Chairman Jo Bonner (R-Ala.) and ranking member Linda Sánchez (D-Calif.) said that the probes of all four Members would continue as Rule 18(a) investigations, a preliminary and open-ended stage that allows the committee to continue gathering information. The committee will not be required to comment further on the cases unless it decides to empanel a subcommittee and hold a rare public ethics trial.
"The belief was that public disclosure of the incomplete file of what [the OCE] found was a sort of club to get the Ethics Committee to act within that time period," said Kenneth Gross, an attorney at Skadden Arps Slate Meagher & Flom. "The club of public disclosure seemed to have its desired effect for the last couple of years, but for some reason it appears to be dissipating at this point."
In a summary of the committee's recent activities sent last month to Speaker John Boehner (R-Ohio), Majority Leader Eric Cantor (R-Va.) and now-Minority Leader Pelosi, Bonner and Sánchez pointed out that the Ethics Committee is unique in that it cannot set its own case load and that the "advent of the Office of Congressional Ethics, and the additional review and documentation procedures mandated for the ever-growing privately-sponsored travel agendas of House Members and staff, have significantly increased the demands on the Committee's nonpartisan ethics and investigative professionals" in recent years.
At one point last year — in the midst of ongoing, but unrelated, investigations of California Democrats Maxine Waters and Laura Richardson, for which subcommittees have been formed — the number of individuals on the committee's investigative staff dropped from 21 to 15. Multiple positions remained vacant for several months until the committee put together its current staff of 22 "professional, nonpartisan" employees and two counsels who assist Bonner and Sanchez.
Buchanan's attorney alluded to the panel's case statistics when responding to the committee's decision to pursue a Rule 18(a) investigation last month.
"Today's action by the House Committee on Ethics does not constitute any judgment on the merits. Rather, the Committee's heavy workload," Patton Boggs' William McGinley said.
Even so, both government watchdog groups and Members want open cases resolved.
"While the Ethics Committee rightly dismissed one of the allegations against me that was before OCE, I have long said that it should swiftly close out the other, as well," Meeks told Roll Call in a statement.
"The whole point of the Office of Congressional Ethics was to force the House Ethics Committee to carry through. ... It was working. I hope it's not falling to the wayside," Public Citizen's Craig Holman said.