Not surprisingly, the Office of Congressional Ethics is under attack yet again. The office, which helped bring some accountability and transparency to the House ethics process, has not been popular since its creation. This time the offensive is coming from a group of defense attorneys who represent members of Congress and their staffs against allegations of ethics violations.
It is also not surprising to see high-dollar, white-collar defense attorneys pressing for advantages for their clients. They see an advantage in creating at the OCE the kind of adversarial process where they excel. The changes they are seeking are designed to give their clients an undue advantage in an ethics investigation: the right to see reports before they are made public, access to all the evidence that’s favorable to the member of Congress, and a “heads up” before the OCE asks the member of Congress for information and documents.
While these requests may make sense for an investigation subcommittee or a prosecutorial agency, they make no sense in the context of the OCE. Experienced attorneys like these know full well what the OCE’s role is, and yet they seem to be misconstruing it, perhaps intentionally, to sow doubt and confusion about what the OCE actually does by rule and thereby weaken its ability to do its job.
The OCE has been a singular success at a time when the rest of Congress is wallowing in dysfunction. Since its inception, the OCE has compiled a record of professionalism and, more amazing, a record of bipartisan success. It has dismissed more than half of the complaints it has received. In every instance, the decision to forward recommendations to the House Ethics Committee for further investigation has had unanimous bipartisan support. It has applied standards consistently and interpreted ethics rules and laws in a common-sense way that puts the Ethics Committee to shame.
The role of the OCE is quite limited, which is unfortunate. As formulated by the House rules, the OCE acts as the independent office that serves as an entry point for allegations of ethics violations by House members and their staffs. Through its fact-finding, the OCE determines whether an allegation should be dismissed, or whether there is sufficient reason for the Ethics Committee to undertake further investigation. It has no power to compel testimony or to make any determination of guilt or innocence. In sum, it acts as a screening mechanism to sift out the legitimate concerns from the frivolous or incorrect. Its role is somewhat similar to, though far weaker than, a grand jury in that its role is to determine whether the allegations brought forward merit being sent on for further action.
Of course, that is not the role that the OCE should be playing. The OCE should have subpoena authority and should act as the investigatory arm for the ethics process while the Ethics Committee should serve the adjudicatory function. As it is, there is needless duplication in the process.