Open Ethics Process Would Be a Good Step
While the bipartisan ethics task force led by Rep. Mike Capuano (D-Mass.) has not yet voted on a proposal, details of a draft have surfaced that include the creation of an independent ethics panel that would be part of the House ethics process.
Such a panel would provide four sorely needed elements now missing: public access to the ethics process; independent preliminary investigation of all complaints filed; public disclosure of actions and findings; and accountability on the part of the House Committee on Standards of Official Conduct for its actions. This is a solid proposal and a step forward in addressing the lack of enforcement and transparency in the House ethics process as well as making the ethics committee and indeed the entire House of Representatives more accountable for its actions.
The draft proposal would open the ethics process by allowing an individual or group outside of Congress to file a complaint. That alone would end the ethics “truce” fostered by existing rules that allow only House Members to file an ethics complaint. That has resulted in Members refusing to file complaints out of fear of political retaliation.
The proposal also would establish a six-member independent ethics panel to investigate all complaints filed. It would have a staff of its own, protected from firings by Members of Congress. After its investigation, and on a date certain, the panel would be required to issue a report to the ethics committee of its actions, findings and supplementary materials, as well as its recommendation that a complaint either be dismissed or further investigated by the committee. If the panel’s vote resulted in a tie, the complaint would be forwarded to the ethics committee with a recommendation to further investigate.
Under this proposal, complaints would no longer languish uninvestigated for months or even years. After an initial investigation, and on a date certain, the ethics committee either would dismiss a complaint or decide to investigate further. In both cases, the committee determination would be made public. In the event of a tie vote, or if the committee failed to take any action, the report, findings and recommendation to the committee by the independent panel would be made public.
Public disclosure is one of the most important tools to hold public officials accountable. If the independent panel and the ethics committee were to disagree on whether to dismiss or further investigate a complaint, the panel’s report, findings and recommendations would be made public. At the end of the committee’s action on every complaint, the independent panel’s work would be made public. In fact, the only time the panel’s report would not be made public would be when the panel and the committee both agreed a complaint should be dismissed.
The House has never before had procedural mechanisms and strict timelines to prevent the ethics committee from ignoring a complaint. Nor has it had the work of an independent panel’s investigation to reference when analyzing the actions of the ethics committee. Both are big improvements.
Some have criticized the draft proposal because it does not specifically require the independent panel to administer an oath to witnesses, nor does it have subpoena power. That should not be a deal-breaker. It already is against the law to lie to Congress or an entity under its jurisdiction, and that would include the independent panel. In the event that the independent panel wanted testimony or documentation that it could not get, it would name in its report recommending further investigation by the ethics committee the witness or document that it wanted but could not get.
There is one troublesome provision in the proposal, however. It would require outside groups or individuals who filed an ethics complaint to disclose their donors of $5,000 or more. While Common Cause discloses its donors of $1,000 and more, and supports full transparency, we oppose that requirement, believing that a complaint should be decided strictly on its merits, not based on its funders.
The draft proposal is by no means perfect. Reformers did not get all that they wanted. Some have complained that it does not go far enough, and Common Cause agrees. However, it is a proposal worth supporting, and our organization hopes Rep. Capuano will continue — as he has promised — to examine ethics committee processes and propose critical further reforms down the line.
Bob Edgar is the president of Common Cause.