The Senate and House took divergent paths on the futures of their respective ethics committees. While the Senate twice rejected calls from outside groups to create an independent counsel-like entity (30-67 and 27-71) known as the Office of Public Integrity, the House capitulated to pressure and the Office of Congressional Ethics, an entity similar in scope and mission to the proposed OPI, was created. After that, a natural legislative experiment has unfolded. In the end, I suspect the House, if given the choice again, would follow the Senate’s course and rejected the OCE because so many of the Senate’s issues turned out to be right.
Many outside groups that lobbied for the OPI and for public ethics committee investigations misunderstand or misconstrue the jurisdictional nuance regarding the limits of what even the most functional ethics committee process can achieve. Ethics committees are not designed to be criminal courts; criminal prosecutions are left to the Department of Justice and the courts.
Ethics committees are the constitutionally prescribed methods for the House and Senate to sanction a member’s behavior and protect each chamber’s integrity. Ethics committees properly reject outsiders’ voyeuristic desires, instead operating in secrecy to keep the process as it is intended, to protect the integrity of the bodies and the rights of the accused.
The Senate’s superior one-step process acknowledges that the political process is rough and tumble but should not include the exploitation of the ethics process to advance fundraising or partisan agendas, as would certainly be the case if ethics investigations were public from start to finish. Once an allegation is public, regardless of merit, it will be used to damage the member’s standing. If there is to be a criminal sanction, it will arise from the Department of Justice and the courts, and that can come earlier or later. Unfortunately, by creating the OCE, the House has ended up with a public process that, unintentionally or not, does just that.
Moreover, within a short period of its creation, the OCE has become exactly what critics in the Senate predicted: an independent-like prosecutor with little regard for members’ rights and a lack of understanding or outright ignorance of the political damage this process created and with questionable rules and processes. Internal grumbling quickly grew public, with the Congressional Black Caucus airing its displeasure with this new process in spring 2010. A nonpartisan staff report from the House Ethics Committee strongly critiqued the results of one of the OCE’s 2010 investigation when, in its findings and conclusions, the OCE noted that an independent investigation of this allegation ... showed that a “reasonable, thoughtful person, who was well-informed of all relevant facts and standards would not conclude there was any appearance of impropriety between official acts.”
Despite one of its supposed benefits, the OCE has done nothing for congressional job approval, which, at 15 percent in a recent Gallup poll is almost half of its March 2006 approval rating of 27 percent.
As it turns out, having an independent counsel-like OCE to conduct investigations did not change the trend in congressional approval ratings or the public’s view about congressional dysfunction and self-interest. But this new process did result in the OCE sending an investigation that the House Ethics Committee found was “not substantively different from the hundreds or thousands of errors and omissions corrected by amendment at the request of the Committee every year.” Duplicative, just as predicted.
A recent letter to the OCE, signed by 10 bipartisan outside lawyers, expressed significant concerns over “ill-advised changes” creating additional issues about a lack of OCE transparency and the accused’s due process rights. They noted the OCE’s rules changes, “depart from the OCE Resolution and curtail basic safeguards that protect the reputation of Members and the integrity of the House.”
Former Sen. George V. Voinovich, for whom I worked, raised similar concerns about the lack of accountability and the potential for curtailing due process when leading the Senate’s effort to defeat the OPI. He was right then, and is right today.
In the meantime, what has the Senate done? Since 2007, the Senate Ethics Committee continued to do its work, confidentially in most cases, and when necessary, doing what Americans expect from it, investigating, educating and, when it believed appropriate, publicly sanctioning senators in a number of high-profile cases. Just as predicted.
Now about that congressional approval rating ...
Douglas Dziak is with the law firm Nixon Peabody LLP and previously served as legislative director and chief counsel for Sen. George V. Voinovich of Ohio during the senator’s tenure as chairman of the Senate Ethics Committee.