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.
Moreover, the Ethics Committee remains crippled by rampant partisanship or cronyism depending on the instance. The outside counsel’s report on the committee’s shamefully botched ethics investigation of Rep. Maxine Waters, D-Calif., revealed a committee process riven by suspicion, staff firings and allegations of partisan bias. The House Ethics Committee remains an embarrassment to the institution, as it has been for a generation.
The proposals offered by the private defense attorneys might make sense, or at least deserve consideration, if they focused on the actual problem — the Ethics Committee itself or an investigatory subcommittee. That is the appropriate place and time for cross-examinations and procedures and protections for those accused of violations of ethics rules.
But the proposals they offer for the OCE miss the mark by a wide margin. Indeed, they would fundamentally hamstring an entity that is charged only with fact-finding. And their proposal to prohibit the OCE from considering the refusal of potential witnesses to participate in the fact-finding in their findings is contrary to standard practice in agencies all across the federal government.
Despite its exemplary record, the OCE’s survival remains tenuous. Too many members fear its independence and its apparent imperviousness to attempts to bend it to partisan purposes. The attorneys’ effort to shape a process to be more amenable to their clients is understandable as they are paid top dollar to tilt the field in their clients’ favor.
But their proposals raise more potential mischief than potential improvements. What they seek is nothing less than to hamstring the only part of the House ethics process that has worked in nearly two decades. Elected officials owe their constituents better than that. They need to show the folks back home that they don’t see themselves as being above the law by virtue of their election.
Meredith McGehee is policy director of the Campaign Legal Center and heads McGehee Strategies, a public interest consulting business.