Graves Edict Prompts Questions

Posted October 30, 2009 at 6:17pm

With the House ethics committee’s release last week of a robust investigation into allegations against Rep. Sam Graves (R-Mo.), ethics experts said what should have been a potentially minor matter could noticeably influence new ethics probes.

Individuals knowledgeable with the House ethics panel’s procedures provided varying prognostications, but most agreed the committee’s recent edict could create a ripple effect.

The House Committee on Standards of Official Conduct, as the ethics panel is formally known, released its 541-page review Thursday, dismissing allegations that Graves had violated House rules and other regulations when he invited his wife’s business partner to testify at a Small Business Committee hearing last spring.

In its report, the committee emphasized that Graves did not violate House rules, noting several times that no rules prohibit an “appearance of a conflict of interest— in selecting hearing witnesses.

“There is no relevant rule or standard of conduct that absolutely prohibits the ‘appearance’ of a conflict of interest or that compels disclosure of every potential conflict,— the report states.

Government reform advocates criticized that determination, characterizing the committee’s ruling as a “highly technical legal— interpretation.

“They’ve taken this very legalistic literal approach, and by doing that it’s kind of like they miss the big picture,— Campaign Legal Center Policy Director Meredith McGehee said.

“They missed an opportunity to set an appropriate tone, which would have reflected that this was a relatively minor matter,— she added.

In a joint statement, the reform groups — Campaign Legal Center, Common Cause, Democracy 21, League of Women Voters, Public Citizen and U.S. PIRG. — asserted that the ethics committee’s determination failed to encompass the “broad ethical standards— of House rules, including a requirement for Members to conduct themselves “at all times in a manner that shall reflect creditably on the House.—

Several legal observers predicted the ethics committee may eventually opt to walk back its assessment that absolutely no “appearance— standard exists — suggesting the committee could find the assertion too limiting in the future — but several attorneys who specialize in government ethics laws also noted that the committee has historically drawn a fine line between apparent conflicts of interest and actual ones.

“It seems like the Committee on Standards got into a very literal reading on the conflict of interest rules, and the Congressman did not cross that line,— said Ken Gross, an ethics lawyer at Skadden, Arps, Slate, Meagher & Flom.

“Historically when it comes to appearances of conduct or conduct not befitting a Member, the standards have been very squishy and somewhat subjective, and the ethics committee … has been reluctant to go down that path particularly when it involves personal investments,— Gross said.

In fact, ethics experts, including Gross, agreed the Graves allegations likely would not have been raised by the committee on its own.

The ethics panel issued its report in response to an investigation referred by the Office of Congressional Ethics, established by the House in 2008 in an attempt to increase transparency in the ethics review process. The OCE reviews potential violations and recommends inquiries to the House ethics committee.

“I don’t know where things are left after this report,— said Rob Walker, an attorney with Wiley Rein who was previously a top aide to the Senate and House ethics committees.

“It is a long-standing matter of ethics committee practice and policy that, as a general matter, ‘appearances of a conflict of interest’ are left to the individual Member to resolve,— Walker said. He explained that deference occurs, in part, because: “There could be wide variation in people determining … that looks like ‘appearance’ to me.—

But Walker added the committee may nonetheless insert itself into a situation if a Member’s actions could “reflect discredit on the institution.—

In interviews Friday, several ethics attorneys differed in opinions, however, over whether Graves’ actions would have triggered the personal or institutional standard.

“The ethics committee hasn’t created a precedent of cases for this type of conduct,— Gross said.

In its report, the House ethics committee also chided the OCE for relying on precedents cited in the House Ethics Manual, an interpretation of House rules published by the ethics committee.

“The House Ethics Manual provides guidance to assist Members, officers, and staff in complying with the Code of Official Conduct or any law, rule, regulation, or other standard applicable to their conduct in the performance of their duties or the discharge of their responsibilities,— the report states. “The House Ethics Manual does not create independent duties outside of the rules and other standards discussed therein.—

While the ethics committee’s declaration should not prevent Members and aides from relying on advice within the Ethics Manual, Walker noted, “We may find the committee expounding upon that in the future to make sure that statement doesn’t undermine the authoritativeness of the manual.—