Office of Congressional Ethics gets backing in dispute with House ethics

Six government watchdog groups have come down squarely on the side of the Office of Congressional Ethics in a recent public spat between it and the House ethics committee.

The Campaign Legal Center, Common Cause, Democracy 21, the League of Women Voters, Public Citizen and U.S. PIRG sent a letter Friday to House Speaker Nancy Pelosi (D-Calif.) and Minority Leader John Boehner (R-Ohio) expressing deep concern about what they see as the ethics committee’s effort to increase its authority to step in and take matters away from the Office of Congressional Ethics (OCE) before the OCE has finished its work.

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“We are also writing to express our concerns about a recent incident in which the House ethics committee publicly challenged the performance of the OCE regarding an ethics matter forwarded to the committee by the OCE,” the groups wrote.

On Wednesday, the groups also sent the OCE a letter declaring their support in its tussles with the ethics committee.

Tensions between the two ethics entities have been brewing for months and erupted publicly in mid-September in a statement the ethics committee issued about its investigation into Rep. Sam Graves (R-Mo.).

The OCE was created last year to review suspected ethics rules violations and complaints and make recommendations to the full ethics committee for further investigation and action.

The committee has 45 days after receiving a recommendation from the OCE to review the matter before it must publicize the OCE’s report and recommendations. The ethics panel also has the option of extending that period an additional 45 days, as it did in the Graves matter.

In its public statement about its decision regarding Graves, the ethics committee also took a shot at the OCE, arguing that evidence gathered in its investigation “may be substantially favorable or exculpatory to him,” despite the OCE’s recommendations to the panel that the Missouri lawmaker may have violated House rules.

Although seemingly subtle on its face, the accusation carried serious charges of legal improprieties because in legal matters, the defendant is supposed to be given any information that arises during an investigation that could help clear his or her name. Because this is an internal House matter and not a legal prosecution or investigation, the ethics committee said failing to provide Graves with the information was a violation of the OCE’s own governing rules.

But the OCE sharply rejected the ethics committee’s charge, countering that any “exculpatory” information was “either in Rep. Graves’s possession directly or through his counsel, or was not pertinent.”

“We respectfully note that documents in the referral to the [ethics committee] make this clear,” the office continued. “The OCE would never withhold exculpatory information from a subject of an investigation and did not in this instance.”

The watchdogs scolded the ethics panel for challenging the OCE’s work in public without telling the OCE about the matter first, calling the decision to do so “highly inappropriate,” especially in the middle of “an ongoing, nonpublic ethics inquiry.”

“In taking this action, the ethics committee left the public impression that it seemed more concerned about the activities of the OCE than it was about the ethics inquiry involved,” they wrote. “It is unclear why the committee felt compelled to make such a public statement about the work of the OCE in the middle of a nonpublic ethics inquiry by the ethics committee.”

The groups also heaped praised on the OCE for its work so far.

“Based on the public record, we believe the OCE is doing an excellent job,” they wrote. “We do not want to see the performance of the OCE undermined by inappropriate challenges to their work, nor do we want to see the stage being set for attempting to weaken the powers of the independence of OCE, when the House adopts new rules at the outset of the next Congress.” 

In June, the ethics committee adopted a new internal rule that watchdogs viewed as a way for it to impede the OCE’s work. The rule changes were aimed at defining the panel’s interactions with the OCE. Under the resolution creating the OCE, the House ethics committee is allowed to stop an OCE investigation if the House panel is already reviewing the same allegation. Both the OCE and government watchdogs had interpreted the resolution to mean the ethics panel had to have established an investigative subcommittee, a sign that it is taking an investigation seriously, in order to step in and stop an OCE review.

The new rule would allow the ethics panel to wrest an investigation away from the OCE even if it had not created an investigative subcommittee — but only after the full panel had voted to make such a request.

The move raised the watchdog groups' hackles when it occurred, so ethics committee Chairwoman Zoe Lofgren (D-Calif.) and Rep. Jo Bonner (R-Ala.) held a meeting with the groups about it in mid-July and invited the press to attend.

The meeting apparently did little to quell the concerns about the rules change. The letter sent to Pelosi reiterates the watchdogs' worry that the ethics committee is trying to snatch investigations away from the OCE and then allow them to disappear into a “black hole.”

“As you are aware, limiting the instances in which a matter could be removed from the OCE by the ethics committee was a very important issue during the deliberations that led to the creation of the OCE,” the groups wrote Pelosi and Boehner. “One of the major reasons for the establishment of the OCE was to address the problem of ethics matters disappearing into a ‘black hole’ at the ethics committee and never being addressed, without anyone having to take formal responsibility for the failure of Congress to do anything about the ethics matter.”