Assessing OCE: Separating Rhetoric from Reality

Red pen underlining the word "ethics"

The Office of Congressional Ethics is under fire and certainly there is no shortage of Members calling for closing the office altogether or at least stripping it of powers in an attempt to bring it to heel.  Either action would be a grave mistake if Congress is to have any hope of rehabilitating itself in the eyes of the public.

I don’t pretend to be a neutral observer when it comes to the congressional ethics process.  In more than a quarter of a century of working on the Hill and lobbying on democracy issues, I have long supported a strengthened ethics process.  I have testified twice in support of creating an Office of Congressional Ethics and of bringing increased independence and credibility to the process within the bounds of the U.S. Constitution before bipartisan Task Forces established by the House. 

The Office of Congressional Ethics that opened its doors in 2008 was not exactly what I had in mind.  The concept I put forward was for the Office to serve as the investigatory body, making recommendations regarding any further action by the Ethics Committee.  The Committee would then fulfill the adjudicatory function, deciding whether a violation occurred and whether the full House needed to act on a recommended penalty. 

Instead, the new procedure sets up the Office to do initial inquiries and make referrals to the Ethics Committee regarding further action.  The Ethics Committee then duplicates that investigation, establishing its own subcommittee to tread over the same ground.  The Committee may then ultimately appoint a separate adjudicatory subcommittee to conduct a trial and recommend a penalty.  The full Committee then votes on any proposed penalties.

I was disappointed that the Office was created without subpoena power, a critical omission for an investigative body.  Without subpoena power, the Office is unable to compel witnesses to cooperative or testify.  Witnesses have incentives to be uncooperative or stonewall. Also, the duplication of investigative bodies is both confusing and unnecessary.  Further the Board of the Office is dominated by former Members and staff, raising concerns that institutional loyalties could outweigh fair-minded application of the rules.

But the Office has done much better than I would have expected – largely due the hard work of its bipartisan leadership, former Representatives David Skaggs (D-CO) and Porter Goss (R-FL), and to its staff director, Leo Wise, a former Justice Department prosecutor.  Every meaningful action taken by the Office has received unanimous support from the evenly split Board.

The office has proven an unlikely success story in performing its duties and restoring some credibility to the House ethics process.  By and large, the attacks on the Office have had little merit.  Complaints, both public and anonymous, have been lodged by Members who were unhappy with whom the OCE is investigating and by an Ethics Committee that has repeatedly made clear that it sees the OCE as an unwanted, illegitimate interloper and competitor.   Those complaining have certainly created a lot of noise. Charges against the OCE include promoting itself too aggressively, failing to control media leaks and announcing investigations without giving members sufficient details on what they did wrong and even racism over it’s investigation of alleged improprieties by members of the Congressional Black Caucus.

Are there legitimate concerns behind all that noise?   Let’s look at the inquiries that have become public.  (It’s important to note that the Office has conducted a large number of inquiries into allegations it has received and dismissed them with no further action.)

CASE #1 Rep. Sam Graves (R-MO) – In this case, the Office investigated whether Rep. Graves should have disclosed that he had a financial relationship with a witness who he invited to testify before a Committee where he serves as ranking Republican.  The Office found there was reason to believe that the House rules had been violated because Rep. Graves’ failed to disclose his financial relationship with the witness.  The Ethics Committee disagreed with the Office’s recommendation.  They said there is no House rule which forbids the appearance of a conflict of interest when it comes to Committee witnesses.  The Committee also accused the Office of failing to meet the deadlines in the Office’s rules.

Was the Office right or wrong?  In the Graves case, the OCE was correct and the Ethics Committee’s criticism of OCE was over-the-top and slightly dangerous.  For the Committee to claim that there is no appearance standard when it comes to potential conflicts with witnesses before a congressional committee is unsettling.  Also, complaints that the OCE missed deadlines required by its own rules were overblown and the result of a difference of interpretation of those rules, not the egregious violation the Committee’s report claimed.  The result of this case should have been an admonishment of Rep. Graves and the issuance of a Pink Sheet by the Committee reminding all Members to err on the side of transparency and caution when it comes to disclosing relationships with witnesses called before a Committee. 

CASE #2  Rep. Pete Stark (D-CA) – The OCE investigated whether Rep. Stark improperly received a Maryland tax break intended for state residents for his waterfront home.  The OCE found that Stark told the state that he voted in Maryland, but in fact he votes in California and has a California driver’s license. OCE also found that Stark (well-known for his tart tongue and temper) had misled OCE investigators during an interview on the matter.  The Ethics Committee issued a scathing response to the OCE’s finding and concluded Stark received no benefit from his mistake, because he corrected the error before Maryland ever adjudicated his application for a tax credit.

Was the Office right or wrong?  It is pretty clear that at a minimum Rep. Stark treated OCE investigators with contempt, and that he tried to get a tax break he wasn’t entitled to, until it came to light.  The result of this case should have been a reprimand to Rep. Stark for his actions and for his lack of cooperation with OCE.

CASE #3 Representatives with ties to PMA Group – The Office investigated whether several members of the Appropriations Committee received improper benefits from the PMA Group, a now-defunct lobbying firm that was raided by the FBI in early 2009, and provided favored actions such as earmarks for the group’s clients.  The FBI was also conducting its own investigation of some of those Members.  Several Members received letters from OCE clearing them of any wrongdoing.  Others had their cases referred to the House Ethics Committee, which conducted its own investigation.  In early 2010, the Ethics Committee closed its investigation into earmarks connected to the PMA Group, concluding that no Members of Congress it had investigated exchanged earmarks for campaign contributions.  A number of Members whose names arose during the investigation were very angry at the ethics process.  They felt they were subject to a form of double jeopardy between OCE and the Ethics Committee.  They also felt that OCE, by simply making inquiries, had dragged their names through the mud.

Was the Office right or wrong?  The information gathered in the course of these investigations made clear the PMA Group lobbyists and their clients believed that their chances of obtaining an earmark were improved substantially by making campaign contributions to the Appropriations Committee members.  The head of PMA Group, Paul Magliocchetti recently changed his plea from not guilty to guilty to improper campaign contributions, using his in-laws, children and employees to funnel campaign donations to Members of Congress with the goal, as the prosecutors stated, “enhance his power and influence as a lobbyist.” With the OCE, the Ethics Committee and the FBI all conducting investigations, it’s difficult to assess OCE’s role in this scandal.  More than anything, the PMA scandal reveals two problems:  the duplication of effort between OCE and the Committee and the seamy underside of the current campaign finance system.  The Ethics Committee’s determination that no rules were broken by Members of Congress is a sad indictment of business as usual in Congress.  The result of this case should have been recommendations to change House rules to prevent earmarks being given to campaign contributors and to reform the campaign finance system to ensure the integrity of Congress.

CASE #4 Fundraising and Members of the Financial Services Committee – The Office conducted an investigation into allegations that members of the Financial Services Committee had violated ethics rules by holding fundraisers geared toward the financial services industry while preparing to vote on legislation affecting that industry.  During the investigation, the Office sent letters to lobbyists for the industry asking for documents involving eight Members who solicited and received large contributions from financial institutions as they were debating proposed new regulations.  The letters made a public splash and raised questions about several Members of Congress who seemed blind-sided by both the letters and the inquiry.  Representative Frank Lucas (R-OK), who was not included in a referral to the Ethics Committee, complained that the OCE damaged his reputation with its inquiry and urged more confidentiality in the process.   At the beginning of September, OCE recommended the Ethics Committee further investigate the fundraising activities of three Members — Reps. John Campbell (R-Calif.), Joseph Crowley (D-N.Y.) and Tom Price (R-Ga.) — and dismissed the cases against the other five Members.  The Committee is reviewing the actions of those three Members.

Was the Office right or wrong?  The Office made a noticeable tactical error in sending the letters to donors and contributors.  The move was both tone-deaf as a political matter and clumsy and heavy-handed as a prosecutorial move.  It may prove to be the last straw in turning Members against the Office which has otherwise conducted itself in a manner completely above reproach.  The reality is that today’s fundraising imperative for congressional candidates requires them to fundraise just about every day and to turn to those individuals and interests which they regulate.  It is a system that corrupts the decision-making process in Congress, taints Members, and erodes public trust.  But explicit quid pro quo’s are prohibited and a legitimate subject of inquiry.  What the Ethics Committee is going to do about the three Members whose cases were referred is to date unknown.  But in any case, the result of this inquiry should have been a reminder to all Members to forgo fundraising from special interests in close proximity to votes on key issues – the best one can hope for until the current campaign finance system is significantly overhauled.  

Just by doing its job, OCE is bound to run afoul of the people it is supposed to be investigating.  While it is no surprise that Rep. Maxine Waters (D-CA) is complaining about OCE during an election year, those complaints lose credibility since the Ethics Committee is preparing to hold a trial, after apparently finding the same causes for concern as OCE. 

Before the rules for the 112th Congress are passed next January, there is certain to be an effort to substantially weaken OCE.  If Minority Leader John Boehner (R-OH) becomes Speaker, OCE may well be disbanded, given that he opposed its creation.  That would be a shame.  OCE has substantially improved the ethics process – dramatically increasing transparency, demonstrating that there can be bipartisan agreement on ethics issues as the OCE Board has shown.  The Office has served as an action-forcing mechanism to ensure that the House Ethics Committee considered and addressed serious ethics matters and that the public received appropriate information about how these matters were resolved by the Ethics Committee.  And, just as important, OCE has shown how the ethics rules should be applied if interpreted by an average, reasonable person. 

The Rules of the 112th Congress will be adopted en masse when the House convenes in January.  That is always a strict party-line vote.   This is where efforts to weaken the Office are likely to happen, likely without many fingerprints.  Certainly, OCE, like any new agency, should be reviewed and improved.  But it is important that any changes that are made in the way OCE works do not undermine or hamper the OCE’s ability to ensure that significant potential ethics violations are investigated by the House Ethics Committee, which had become a black hole for potential ethics violations, only compounding the low public opinion of Congress.

The OCE isn’t perfect, but it has been a pleasant surprise as it has indisputably been a net positive in creating a more transparent and accountable ethics process.  At a time when Congress is suffering from very low ratings in the polls, weakening congressional ethics enforcement is exactly the wrong way to rejuvenate its standing with the public.  These efforts to drag the process back into the back rooms should be seen for what they are – an act of supreme hubris on the part of Congress and an affront to the American people.