Even though the Office of Congressional Ethics (OCE) has done much over the past seven years to bolster the integrity and credibility of the House ethics process, some members of the House have resented the office since its inception. Created after a series of scandals shamed the House, OCE is charged with determining if an allegation of an ethics violation by a House member or staffer warrants further investigation by the House Ethics Committee. OCE has an established record of fair investigations and bipartisan cooperation that have made House members wary of condemning OCE publicly. However, their surrogates and white-collar defense attorneys have attacked the office with increased vehemence. Take, for example, the most recent salvo against OCE.
In a recent op-ed, Dan Schwager, a former Ethics Committee staff director who now works as a private attorney representing members before the OCE, asserts that “substantial reason exists to believe that OCE was the source of the leak” of an OCE report on members’ travel to Azerbaijan. Schwager, however, provides no evidence for this assertion. Instead, he alludes to past disagreements between OCE and the Ethics Committee about OCE’s role, cites an anonymous government official quoted in The Washington Post as saying “OCE feared the Ethics Committee would not take any meaningful action,” and speculates that OCE was concerned the report would not be released. From this, Schwager concludes that “it would not be surprising for OCE to develop a bunker mentality and lash out” by leaking the report.
When you clear away the smoke, Schwager apparently believes that because he would not find a leak of the report “surprising,” there must be “substantial reason to believe” it occurred, even though he provides no evidence for his claim. That’s why several groups and individuals from across the ideological spectrum recently wrote House Speaker John BoehnerJohn Andrew BoehnerDemocrats eager to fill power vacuum after Pelosi exit Stopping the next insurrection Biden, lawmakers mourn Harry Reid MORE (R-Ohio) and Democratic Leader Nancy Pelosi (D-Calif.) urging them to discount Schwager’s unfounded accusations. The groups range from Common Cause to Judicial Watch and the National Legal and Policy Center, and include long-time congressional observers and experts Norm Ornstein and Tom Mann.
Schwager uses this questionable accusation as a starting point for a general attack on OCE. This is, unfortunately, a growing symptom of defense lawyers that perceive an advantage in attacking the messenger, rather than substantively addressing allegations of serious wrongdoing by members or staff.
OCE plays an important role helping to protect the integrity of the House and its Members. It has significantly improved the House ethics process. In the vast majority of cases, the OCE has reached its conclusions with the unanimous support of its board members from both parties. The public record shows that 64 percent of complaints received by the OCE have been dismissed or closed before conclusion of the OCE process. Further, public records show that of the 49 reviews resulting in further referrals to the House Ethics Committee, 46 are a matter of public record and reflect a transparency previously unseen in the House ethics process. The office has compiled a stellar record of professionalism and non-partisanship.
The record compiled by the House Ethics Committee pales in comparison. The Ethics Committee is riven with partisan intrigue and retains an unhealthy penchant for secrecy and member protection rather than fair, impartial enforcement of strong and meaningful ethical standards.
OCE is a fact-finding agency. It is not empowered to determine guilt or innocence; neither can it conclude that a law or rule has been violated, or judge a case. It is charged simply with receiving complaints from the public or initiating investigations on its own, compiling an evidentiary record from voluntary sources and, if approved by a majority of the six-member bipartisan Board, referring a case to the formal Ethics Committee for further investigation.
OCE’s investigative authority is limited, yet the agency performs admirably to screen out frivolous cases, compile useful information for cases considered by the Ethics Committee and provide a valuable link between the congressional ethics process and the public. OCE has demonstrated appropriate prudence in its work, dismissing well over half of the complaints it has received as lacking merit. Its efforts have prompted the Ethics Committee to become more active and diligent. OCE provides credibility to a House ethics process that for too long operated in secret without accountability.
Before the creation of OCE in the wake of multiple congressional scandals, the Ethics Committee was a place where ethics complaints went to die. The attack from Schwager should be ignored by the House bipartisan leadership and the rank-and-file. Given its limited authority, OCE has done a remarkable job making the congressional ethics process more active, accountable and transparent. Giving subpoena power to OCE would make its work even more effective.
The bottom line is that no public evidence is available about the source of the leak of the Azerbaijan report. The House should take steps to determine the source of the leak. It is also incumbent on the House Ethics Committee to examine and report the information revealed by the OCE document.
OCE will never be popular with those members who were perfectly happy that, before the office’s creation, ethics complaints disappeared forever into a black hole created by the Ethics Committee. Slander and speculation aside, OCE has helped greatly to strengthen the House ethics process. The work of OCE helps prove to an increasingly jaded public that even lawmakers are not above the law.
McGehee is policy director of the Campaign Legal Center and heads McGehee Strategies, a public interest consulting business.