For evidence of how the Office of Congressional Ethics could use subpoena power, look at its investigation of Rep. Steve Stockman.
The Texas Republican drew the office's attention in October 2013 for campaign contributions made to his group, Friends of Congressman Steve Stockman. Investigators got a tip that Stockman conspired to accept donations from two employees of his congressional office. If true, the illegal contribution would be the latest in a series of controversies. After a 16-year absence from Washington, the staunch conservative won a long-shot bid at a second term. Both in that campaign and in the 1990s, Stockman ran into trouble with the Federal Election Commission. His earlier run for office resulting in a $40,000 civil penalty in 1998.
When Stockman set up shop on Capitol Hill for his most recent stint, he promptly hired two loyal allies. Both Jason Posey, his longtime associate and campaign treasurer, and Thomas R. Dodd, had ties to the Leadership Institute, a conservative Northern Virginia center where more than half of Stockman's campaign staff trained. Stockman and Dodd previously worked on its staff.
According to OCE, Stockman reported receiving $7,500 from Posey's father and another $7,500 from Dodd's mother. Each donated the maximum allowable amount toward each of the three elections — primary, general and runoff — in which Stockman was a candidate in 2012. After the Sunlight Foundation began poking into the matter, the campaign amended the filings.
In its 89-day review of the matter — the maximum length of time OCE is allowed — the office asked for testimony from Stockman, Dodd, Posey and two other members of his congressional staff. They also reached out to Dodd's mother, Posey's father and a certified public accountant who volunteered for Stockman's congressional committee for testimony. Additionally, OCE requested information from the treasurer of the campaign committee, and three other congressional staffers. All 12 refused to cooperate.
"From what I understand, it’s a growing problem," said Meredith McGehee of the Campaign Legal Center, one of the outside groups that believes subpoena power is key to real ethics enforcement. When the OCE started operating in 2009, McGehee said Congress was of the notion that not complying would "leave a bad mark going by your name."
"Increasingly they’re finding that people are saying, 'We’re just not going to cooperate,'" she said. "So what we’re left with is inability to come to what they consider a good resolution."
Since the dawn of discussions about independent congressional ethics office, outsiders have argued for subpoena power. Although the House Ethics Committee can subpoena witnesses, watchdogs say the full-time ethics squad at the OCE is best suited to investigate. They say the professionals at the OCE should be empowered to act as a grand jury, and the committee can simply adjudicate.
But that arrangement might stray from the spirit of the Constitution, which gives Congress the authority to police its own.
"The Ethics Committee should be the clear and final arbiter of any allegations of ethical misconduct," said Craig Engle, founder of the political law group at Arent Fox LLP and former general counsel to the National Republican Senatorial Committee. "They are the ones who are truly charged with disposing of these cases. OCE can get the cases organized and give them to ethics, but I don’t envision OCE itself becoming its own bureaucracy."
Issuing a subpoena is a time-consuming process that might extend beyond OCE's 89-day timeframe. When the office refers cases to the Ethics Committee, it often recommend subpoenas. House rules mandate committee members must vote to issue a subpoena, and at least two members must be in the room to conduct a witness interview under subpoena.
How subpoena power might change the OCE's process is unclear. Both House Ethics Committee staff and the Office of Congressional Ethics declined to speak on the record about the issue.
"Giving OCE subpoena power is exactly the opposite direction that this method should go," Engle said. "Instead, I view the Ethics Committee as truly being the arena where these things are going to be decided." He thinks the Ethics Committee should get the case organized, collect statements and documents and send it off to the committee with a summary.
"It is the Ethics Committee who knows what the law is and how to apply it," Engle said. "OCE, in my opinion, should not have a role greater than the Ethics Committee."
For now, the Ethics Committee is off Stockman's case.
The OCE voted to send its referral to the committee in late February, a few months into Stockman's quixotic campaign to challenge Sen. John Cornyn in the Texas Republican Senate primary. According to the OCE report, Stockman might have illegally filed false payroll forms around the time he launched the Senate bid that purported to document the firing and re-hiring of Posey and Dodd, in an effort to cover his tracks.
Stockman had lost his Senate bid by June, when the committee made the probe public in accordance with disclosure rules. Also released was Stockman's response, a 48-page letter that slammed the OCE for perceived incompetence. The committee opted to continue a fact-finding review, rather than forming an formal investigation into charges against the outgoing congressman.
In November came the disclosure that Stockman and three of his staffers have been served with subpoenas for a criminal grand jury investigation in U.S. District Court for the District of Columbia.
During a recent conversation in the Speaker's Lobby, Stockman told CQ Roll Call he couldn't talk about the grand jury but said he was complying.
The subpoena could be legal action from the FEC over failure to pay back political donations after his loss to Cornyn. Since he opted not to run for his House seat, FEC rules require Stockman to settle up with campaign contributors.
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