Q:
I am a House staffer with a question about the newly created Office of Congressional Ethics. From reports I have read, it appears that the OCE will not have authority to issue sanctions. Rather, if I understand it correctly, after the OCE investigates a potential ethics violation, the most it can do is recommend further investigation by the House Committee on Standards of Official Conduct. If that’s right, what’s the point of the OCE?

[IMGCAP(1)]A: Given your question, it is unlikely to surprise you that the newly created Office of Congressional Ethics has already attracted its share of critics, many of whom have charged that the OCE is merely an attempt to score political points by appearing to address Congressional corruption without actually doing so. Critics from the left and right have even used the same language to condemn the OCE, calling it an unnecessary “layer of bureaucracy.” Like you, these critics question whether the OCE will serve any real purpose.

To a certain extent, the critics have a point. As you note, the OCE cannot issue sanctions. In fact, the OCE is twice-removed from any real sanctions. The strongest action the OCE can take is to recommend further investigation by the House ethics committee. Yet, beyond a letter of condemnation, the strongest action the ethics committee can take is to recommend that the House issue sanctions. Put crudely, the role of the OCE is to conduct an investigation to determine whether another committee should conduct an investigation to determine whether to recommend sanctions to the House.

On the other hand, given all of the work that went into it, it is hard to imagine that the creation of the OCE could be completely without purpose. The resolution creating the OCE came after an 11-month, bipartisan review by the Special Task Force on Ethics Enforcement, which the House established in January 2007 to determine whether it should create an independent ethics enforcement entity. The task force consisted of eight Members, four from each party, and met at least 30 times. It solicited input from reform groups, scholars, and current and former ethics committee staff. At the end of its review, in December 2007, it issued its recommendations in a 25-page report. The task force’s ultimate recommendation was to create the OCE. According to the task force’s report, the recommendation was based on “months of study, meetings, and discussion by members.”

As to the purpose of the OCE, the task force’s report identifies two primary “goals” with respect to improving the current ethics process. First, the OCE is intended to add an independent-review element by non-Members. This addresses the concern that the public does not trust Members to police themselves. Second, it is intended to increase the transparency of the House ethics process, which has historically been subject to confidentiality under ethics committee procedures.

The task force sought to accomplish the first goal — independent review — by creating the OCE and setting strict qualifications for its board members. The board will be bipartisan. Of the six OCE board members, the Speaker will nominate three with the concurrence of the Minority Leader, and the Minority Leader will nominate three with the concurrence of the Speaker. Members, lobbyists and federal employees all are ineligible to serve on the board. And finally, board members must agree not to seek any federal public office within three years after leaving the board.

The task force sought to accomplish the second goal — increased transparency — by overhauling the review process. Under the resolution, the OCE is to conduct its review in two stages: a preliminary review and a second- phase review. A preliminary review is triggered by the written request of at least two board members — one of whom must have been appointed by the Speaker and one by the Minority Leader. To move from a preliminary review to a second-phase review requires the affirmative vote of three board members. Otherwise, the review is terminated.

If the matter does advance to a second-phase review, after the OCE conducts such a review it must refer the matter to the House ethics committee and provide two documents: (1) a report recommending dismissal or further inquiry, or stating that the board vote on this issue was a tie; and (2) findings of fact. The resolution states that neither document should contain conclusions regarding the guilt or innocence of the person subject to the review, because such matters are the sole purview of the ethics committee.

This is where the transparency comes in. In most circumstances, after the ethics committee reviews a matter referred by the OCE, unless the OCE and the ethics committee agree that the matter should be dismissed, the ethics committee must make public: (1) the OCE report; (2) the OCE’s findings of fact; and (3) the ethics committee’s own commentary regarding the status of the matter. Ultimately, the ethics committee must recommend how to resolve the matter.

Well, will it work? That depends on whom you ask. The unpredictability of the OCE’s efficacy is apparent from the conflicting predictions about its fate. Some say the board’s lack of authority both to issue subpoenas and to impose sanctions will make it a paper tiger. Others have voiced the opposite concern: that a mere referral by the OCE to the ethics committee will be tantamount to a guilty verdict, and that the committee will have no function but to affirm what has been referred by the OCE.

It is the presidential primary season, which invariably means that there is constant talk about “change.” Less common is any discussion about whether the “change” will be for the good. In the case of the recently created OCE, there is no question that it will be a change. What is less clear is whether the change will be for the better or worse. Even the chairman of the ethics task force, Rep. Mike Capuano (D-Mass.), acknowledged the OCE’s uncertain fate. As he put it: “It might fail. It might not.”

C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.