An Ethics Process Badly in Need of Reform (The Hill)


There is good news and bad news today in the House's vote to defeat the amendment offered by Rep. Mel Watt (D-N.C.) to gut the funding of the Office of Congressional Ethics (OCE). The good news is that it went down to defeat with 302 Members voting against it. The bad news is that there are at least 102 Members who are totally clueless about public perception and apparently about the facts of what has been occurring in the House ethics process.

Just this week, an outside counsel was appointed to take over the investigation of alleged violations of House ethics rules by Rep. Maxine Waters (D-Calif.) as well as investigate the allegations of leaks, professional misconduct and partisan meltdown in the House Ethics Committee itself. None of these alleged malfunctions have anything to do with the OCE, which, in contrast, has been conducting itself to date with a rare degree of professionalism and bipartisan agreement. Indeed, it appears that it is the OCE's professionalism that has so irritated some members, particularly those who have been the subject of an OCE investigation.

But just because the Watt amendment has gone down to ignominious defeat and an outside counsel has finally been appointed in the Waters matter does not mean the House can heave a sigh of relief and pretend the problems have been solved. While an outside counsel is essential in bringing a resolution in the Waters matter because of the hash made of that investigation by a committee and its staff (as well as the investigation into Rep. Charlie Rangel (D-N.Y.), hoping that everything will quiet down or that continuing to turn to outside counsel for high-profile investigations are not real solutions.

Without a basic reform in the ethics process, the fundamental problems of the committee charged with enforcing House ethics rules will remain mired in its own dystopian morass, consumed by partisan bickering and backstabbing and accusations of ethical transgressions and professional misconduct by staff and members.

The committee's long and undistinguished record of dramatic underperformance is a result of a fatal flaw in the structure of the process. It was bad enough that the House went through 10 years of an "ethics truce" after changing the rules to prevent complaints by anyone outside the institution. And it was a big disappointment when former Republican Speaker Dennis Hastert unceremoniously removed Ethics Chair Joel Hefley (R-Colo.) when he pursued an investigation of allegations against Majority Leader Tom DeLay (R-Texas).

And while passage of the Honest Leadership and Open Government Act (HLOGA) and creation of the Office of Congressional Ethics (OCE) under Speaker Pelosi leadership were important steps forward -- as was new Speaker John Boehner's (R-Ohio) decision to keep the OCE despite pockets of bipartisan opposition within Congress -- a vital ingredient was left out, purposefully. While a certain level of dysfunction is likely inevitable in any ethics process in any legislative body, there is a way forward that should once again be put on the table.

That is to get the Ethics Committee out of the business of investigations altogether.

The original proposal for creation of the Office of Congressional Ethics, as presented in testimony to the House's bipartisan ethics task force, proposed housing the investigative function of ethics complaints with the OCE. The Ethics Committee's role would be the business of adjudication.

The Constitution is clear that the House is the ultimate judge of the suitability of any member to remain in the House. But that judgment need not -- and indeed has shown repeatedly -- include the investigatory responsibilities. The committee, by its very structure, is not well-suited for this function.

In contrast, the OCE has compiled an admirable record demonstrating it can handle investigations professionally and with bipartisan support. Every item it has recommended to the Ethics Committee for further investigation has received unanimous bipartisan support.

Such a change would also eliminate the current wasteful duplication where OCE investigates and then the Ethics Committee also sets up an investigative subcommittee (which is nonetheless preferable to the old system where the committee appeared to do nothing and refused to say anything).

Proposals to fix the existing problems by relying more strongly on outside counsel may solve a temporary problem but also potentially create others. One flaw in this model is that there can be partisan disagreement on who to hire, resulting in long delays. Another is that the individual brought in may have his or her own agenda. That certainly seemed to be the case with Richard Phelan, who was hired to investigate former House Speaker Jim Wright (D-Texas). Phelan used his notoriety after the case to run for public office (without much success). Also, outside counsel can prove expensive.

Of course, any time the prospect of reforms to the ethics process is brought before the House there are real risks that the process can be weakened. A significant number of members from both parties continue to view OCE with fear and skepticism, despite the stellar record it has compiled.

The status quo, however, remains a stain on a Congress that is already struggling in a poisonous partisan atmosphere. Hopefully, the outside counsel brought in for the Waters investigation will help shine the light on what happened behind the murky darkness that always characterizes Congress' ethics process. But the current situation only serves to demean the institution, and is unfair to members who deserve a speedy and politically credible result when allegations of ethics violations are made.   

Meredith McGehee is policy director of the Campaign Legal Center. She also heads up McGehee Strategies, a public interest consulting business.

This opinion piece originally ran in The Hill on July 22, 2011. To read it at The Hill, click here.