The House of Representatives this week quietly approved changes to ethics rules that government watchdogs fear could help lawmakers obstruct investigations.
The provisions from Rep. Steve Pearce (R-N.M.) adopted on Tuesday take aim at the House Ethics Committee and the Office of Congressional Ethics (OCE), specifying that neither body can “take any action that would deny any person any right or protection provided under the Constitution of the United States.”
Lawmakers have often bristled at the actions of the OCE, which was created by Democrats in 2008 after they promised to “drain the swamp” of corruption in Washington.
Since then, members of both parties have accused the OCE of unfair treatment and alleged that the investigative process is often exploited for partisan ends. Some lawmakers have threatened to cut the office’s funding or even close it down.
The OCE has repeatedly said that its confidential investigation process is independent and fair.
“The OCE has an unblemished record of conducting fair reviews that respect the rights and privileges of everyone involved. There has never been an instance in which we have done otherwise," Omar Ashmawy, OCE’s staff director and chief counsel, told The Hill on Monday.
Unlike its counterpart in the House, the OCE does not have subpoena power and can only conduct "fact-finding missions" when it receives a complaint about a lawmaker or staffer. Those complaints can be filed by anyone, but submitting an accusation does not always result in an investigation.
Craig Holman, a government affairs lobbyist for Public Citizen, said the new language pertaining to the OCE is troubling because it turns the informal review of a complaint into a more formal legal proceeding.
Sometimes people under OCE investigation hire lawyers, “but formal legal proceedings are not part of this preliminary stage,” Holman wrote in an email to The Hill.
“By transforming a preliminary fact finding mission into a formal legal proceeding, investigations by OCE can be delayed and even derailed altogether,” Holman wrote. “This new rule of formalizing an otherwise informal investigation poses a serious roadblock.”
After a preliminary inquiry, cases advance to a phase II investigation if OCE has “probable cause to believe the allegations,” according to its website. If there is “substantial reason” to believe a complaint may have merit, a report with recommendations is sent to the House Ethics Committee. OCE is "authorized to determine if a violation occurred" or suggest punishments.
Of the 137 cases explored by OCE within the last three sessions of Congress, 47 were terminated after a preliminary review and 33 were dropped after the second stage, meaning more than half of all investigations were dropped. Only 49, or about 36 percent, were sent to the House ethics panel in the last five years.
Attorneys who advise political figures on legal matters said they welcomed the changes to House rules.
Robert Kelner, the chair of Covington & Burling’s election and political law practice group, said the rules could give defense attorneys new arguments when clients face allegations of misconduct.
“There are a wide range of due process protections guaranteed by the Constitution,” Kelner said. “Anytime OCE or the Ethics Committee act in contravention of one of those guarantees, defense lawyers will cite the new House rules to demand fair treatment for their clients.”
Kenneth Gross, the head of the political law practice at Skadden, Arps, Slate, Meagher & Flom, said the rule dealing with the OCE tackles the issue of “negative inference,” or using noncompliance as a reason to continue an investigation.
Sometimes people under investigation by the office choose not to cooperate, Gross said. Because a probe by OCE is not a formal legal proceeding, the office has no way to force individuals to hand over information.
“There may be a variety of reasons for a respondent to decide to cooperate in an investigation. However, if he or she chooses not to, that decision should not be subject to a negative inference,” Gross said. “Thus, I favor the new rule that requires advising respondents of their rights if they are subject to an OCE investigation. “
Pearce’s office told The Hill that the congressman introduced the rule changes quietly because it was a personal issue rather than a political one.
“We’re not in a witch hunt for anything,” said Todd Willens, Pearce’s chief of staff. “Our concerns stem from a first-hand case.”
The office said a former Pearce field staffer named Kenny Rogers came under investigation from OCE after a federal employee filed a false claim looking for retribution after a dispute. Willens said Rogers, who no longer works for Pearce, was treated aggressively because he refused to turn over documents.
“If OCE repeats the way it treated our employee — now it’s a violation of House rules,” Willens said.
“[Pearce was] not on a crusade on this whole thing. It has nothing to do with these lawyers or good government groups,” Willens said. “This is about Kenny Rogers in the district and it’s about other staffers like him, the ones who are, day in and day out, working the issues on the ground. It’s very personal for the congressman.”
The OCE is barred under the law from commenting on the allegations from Pearce’s office and cannot say whether an investigation occurred.
The review of Rogers was terminated, according to Pearce’s office, so there are no public records documenting it.
Holman, the lobbyist for Public Citizen, remains convinced the new OCE rules are an attempt to obstruct the office’s work.
"The intent of this clause is to provide members with an additional authority to complicate ethics investigations,” he wrote in an email.
"Even though all constitutional rights already apply to the ethics proceedings as determined by the courts, this clause in the congressional rules enables challenges to ethics proceedings on constitutional grounds as determined by members themselves," he added.