The inadvertent disclosure of investigations being conducted by the Office of Congressional Ethics (OCE) highlights only one of the problems inherent with its creation.
OCE was established in 2008 as part of the Democratic leadership’s commitment to clean up Washington after the Jack Abramoff and Randy “Duke” Cunningham scandals. Other reforms included the adoption of severe restrictions on the interaction of members with lobbyists and increased reporting of lobbyists’ activities.
To be sure, the committee has had to overcome internal organizational hurdles, attributable to the fact that unlike other committees, it is composed of an equal number of Democrats and Republicans.
By and large, however, and especially in recent years, the committee has actively and effectively met its challenge of balancing the legal, ethical and political factors involved in each member it investigates.
In establishing OCE, significant constitutional concerns were ignored, along with concerns about the practicality of a part-internal, part-external body operating within the House of Representatives. Also ignored was the fact that there was already an independent group watching over lawmakers — the Department of Justice (DoJ).
The fact that lobbyist Jack Abramoff, former Reps. Randy Cunningham (R-Calif.) and Bob Ney (R-Ohio) and their cohorts all were under investigation should have provided ample evidence that the system was working.
It bears noting that, if anything, the DoJ has been an impediment to the ethics committee, since the committee customarily defers its own investigation whenever the DoJ investigates the same matter. This is done precisely to avoid any accusation that it was interfering or, even worse, obstructing an investigation into one of its own.
OCE is an example of a good idea colliding with the reality of the situation it is seeking to address. It is a little of this and a little of that. It is composed of highly respected directors and staff. But it is not autonomous and does not have full investigative powers. It cannot mete out punishment.
What it does possess, and what may be its most coveted characteristic to the public interest community, is its ability to accept ethics complaints against lawmakers from outside groups, something House rules prohibit the ethics committee from doing.
Prior to the creation of OCE, only members of Congress had the right to file complaints with the House ethics committees.
Prohibiting outsiders from filing was believed to be necessary to stem a widespread filing of complaints motivated by political partisanship and to prevent the presumption of guilt. There is ample evidence to show that long after an investigation is resolved in favor of a member, the political harm brought about by it remains. In some cases the damage cannot be repaired, and the member is defeated at the polls before the allegations have been shown to be baseless.
In spite of these concerns, in 1997, the bipartisan Livingston-Cardin Ethics Reform Task Force recommended that the public be allowed to submit complaints to the House ethics committee. When its report was considered by the House, a majority rejected the public filing recommendation, and that had been the rule until OCE was created.
Although not highlighted during its consideration, it should have been foreseeable that OCE would receive and accept information and complaints from the public. Today, on its website, OCE expressly invites the reporting of information about alleged wrongdoing of lawmakers. This information can and has served as the basis of complaints that OCE has referred to the ethics committee.
The House should recognize that it has created a backdoor method that allows the public to file ethics complaints against members. Having done so, the House should eliminate the duplicative, costly, and constitutionally suspect OCE when the 112th Congress convenes.
In return, it should allow complaints to be filed by the public directly with the ethics committee. If outsiders must be used, they should be brought within the ethics committee’s own processes, where they could serve as advisers or even as a “grand jury” to provide an independent review of complaints filed by the public.
Can the House leadership survive the political fallout from such a change? Perhaps. Public interest groups also called upon the Senate to create an independent ethics panel, which it has not done. Why have its leaders been able to avoid their scrutiny? The Senate allows the public to file ethics complaints. For constitutional, institutional and practical reasons, the House should do the same.
Spulak is a King & Spalding partner in the Government Advocacy and Public Policy Practice Group. He served as Democratic staff director and general counsel of the House Committee on Rules, and as general counsel to the House.