Ethics panel has track record of leniency

The House Ethics Committee has not officially punished the vast majority of lawmakers it has investigated as a result of referrals from an independent ethics panel.

The Office of Congressional Ethics (OCE) has sent 32 known cases to the secretive panel, which has launched only eight formal investigations that could have led to official rebukes. Four of those were later dropped, and only one has resulted in official House sanctions, while three are ongoing.

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Since Republicans regained control of the House in 2011, the nonpartisan OCE has referred eight cases to Ethics, but the panel has moved to officially investigate only one of them — that of Rep. Shelley Berkley (D-Nev.). The panel launched an investigative subcommittee last week to look into allegations that Berkley used her position to help her husband’s medical practice, a charge she denies.

Ethics lawyers who have argued cases before the committee stressed that it conducts “fact-gathering” probes in all the OCE referrals. They also pointed to the less formal penalties imposed by the panel — typically in the form of fines — as evidence that Ethics is not averse to punishing members.

But good-government groups and the former head of the OCE are worried that the lack of official penalties is proof the panel hasn’t changed much since the OCE was created by Democrats in 2008 after a wave of ethics probes damaged Congress’s reputation and contributed to Republicans losing the House in 2006.

“I have no doubt the low rates of the Ethics Committee following the recommendations of OCE is the product of the Ethics Committee being exceedingly reluctant to pursue ethics investigations against their own colleagues,” said Craig Holman, a government affairs lobbyist for the Public Citizen watchdog group.

Leo Wise, the first chief counsel for the OCE, told The Hill that Ethics did everything it possibly could during his two-year tenure to avoid officially punishing members. 

“The committee’s conduct since the creation of the OCE shows that they really don’t exercise their investigative and charging function responsibly,” said Wise. “They tie themselves in knots to try to let people off the hook when the evidence staring them in the face suggests someone should be held accountable.”

Part of the reason the Ethics Committee has opted for less severe action lies in the different functions and levels of guilt it uses, as compared to the OCE.

When it investigates a lawmaker, Ethics strives to prove whether the member violated House rules knowingly or willfully. If the committee finds that the lawmaker unintentionally violated the chamber’s rules, the panel typically moves to resolve the matter by issuing fines or ordering the member to pay back the prohibited money or services he or she accepted. 

The OCE, however, is tasked with establishing through its investigations — which lack subpoena power — whether there is “substantial reason” to believe a lawmaker violated House rules.

“The OCE is simply a device to reach a probable-cause determination, not to find anybody guilty or to adjudicate cases or to draw conclusions; they have one set of criteria and the committee has another,” said Stan Brand, an ethics lawyer who is representing Rep. Maxine Waters (D-Calif.) against the committee.

The OCE was created after House Democrats rallied behind calls from then-House Speaker Nancy Pelosi (D-Calif.) to “drain the swamp” of public corruption.

Ethics is required to publicly acknowledge a referral from the OCE within 45 days of its receipt. The OCE’s report is then made public, unless the committee agrees with the OCE’s advice to dismiss the matter. If Ethics decides to move forward with the case, it can empanel an investigative subcommittee, request an additional 45 days to make its decision or release the OCE’s report and continue the “fact-gathering” probe under Rule 18A.

Merely making the OCE investigation public is sometimes punishment enough for the member, said Washington ethics lawyer Ken Gross.

“When it comes to ethics investigations, sometimes the process itself is the penalty, not what happens at the end of the day,” said Gross, who has represented both Democrats and Republicans and agreed with Brand that the two bodies have independent functions.

Initially, the relationship between the new board and Ethics was highly contentious.

When Ethics dismissed the first two high-profile cases referred to it by OCE — against Rep. Sam Graves (R-Mo.) and Rep. Pete Stark (D-Calif.) — it said OCE’s reports were “fundamentally flawed” and constituted an “inadequate review,” respectively.

Since Wise left in 2010, ethics insiders say the rifts between the two ethics bodies have smoothed somewhat.

When Republicans took control of the lower chamber, they pledged an atmosphere of “zero tolerance” toward ethics violations, even as rumors circulated that the GOP would try to gut the OCE.

Instead, the OCE remained intact, and good-government groups give it high marks for scrutinizing lawmakers.

Though Wise and watchdog groups are critical of the Ethics panel, they argue the OCE has not been rendered mute by Ethics’s decisions not to officially punish members referred to it by the OCE.

They note that instances of less formal punishment have risen since OCE’s creation. The Ethics panel took a total of 10 informal and formal actions from 1997 to 2008, but took 11 such actions during the first two years of OCE’s existence, according to Public Citizen.

And Wise linked several significant reforms to House ethics laws back to OCE investigations, pointing to the earmark ban and tighter rules around travel reimbursements for members. In both instances, the OCE submitted detailed reports in connection with its investigation of members who were accused of violating House rules covering the issues.

“OCE is supposed to make referrals,” said Wise. “If it’s doing that in a professional, nonpartisan way, it’s succeeding. If the committee doesn’t act responsibly or hold people accountable, that’s on them. ”