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.
Senate Minority Leader Mitch McConnell, R-Ky., carries a musket on stage as he speaks during the American Conservative Union's Conservative Political Action Conference (CPAC) at National Harbor, Md., on Thursday March 6, 2014.