As a former Investigative Counsel with the U.S. House of Representatives Office of Congressional Ethics, I was both disheartened by House Republicans’ move to eliminate independent ethics oversight on the opening day of the 115th Congress and ultimately relieved the attempt was abandoned after a public outcry and President-elect Trump’s tweet condemning the effort by fellow Republicans to gut the OCE.
This was not the first attack on OCE, and it will surely not be the last.
{mosads}Some reforms to OCE are warranted, though, and reform should begin by clearing the air of falsehoods and misconceptions about OCE.
We need to separate OCE fact from fiction, and distinguish the legitimate critiques from the unfounded, unspecified, and exaggerated allegations of impropriety and overreach by those who would rather not be held accountable. Only then can we focus attention on the changes to OCE that are actually needed, and avoid its elimination which would return the House to the Jack Abramoff era.
Fact vs. Fiction
Predictably, certain members of Congress under OCE scrutiny have resorted to claims of due process violations, interference with witnesses’ right to legal counsel, intimidation, and leaking information by OCE in order to deflect attention and justify the elimination of independent ethics oversight. These allegations can and should be debunked.
For example, OCE informs witnesses that they should not be represented by a particular attorney only under rare circumstances ― when that attorney has a conflict of interest because they are also a fact witness or representing others under review. I am not aware of OCE ever discouraging a member or witness from being represented, or taking any adverse action or inference against a person for doing so.
Claims of intimidation are also unfounded. OCE reviews are entirely voluntary. Some witnesses decline to cooperate, as is their right. The most that OCE does is merely notify them, via form letter, of the potential consequences of non-cooperation so that they can make an informed decision, including that pursuant to OCE rules non-cooperation may be a factor considered by OCE in recommending further review or dismissal by the Ethics Committee.
But this is not intimidation. This is entirely consistent with OCE’s mission to determine which matters merit further investigation by the Ethics Committee, an entity that can compel testimony.
Additionally, I am aware of no credible evidence that OCE has improperly leaked information regarding its investigations to the press, nor does OCE have a motive to leak referrals already scheduled for public release.
Needed Reforms
Reforming OCE should focus on areas where improvement is actually needed.
For instance, the House should clarify the Ethics Committee’s ability to halt OCE reviews and withhold referrals from public release, and create a transparent mechanism for resolving disputes between the two bodies on these issues when they occur.
The House should also clarify its ethics rules and regulations, and provide OCE with guidance on violations that should be considered de minimis in nature and therefore appropriate for OCE dismissal. The public sees only those instances (reportedly 68 out of 172 cases) in which OCE “indicts” rather than “clears” a subject, leading to misperceptions about the OCE’s ability and willingness to sort out meritless allegations.
OCE is not empowered to interpret House ethics rules, and it has done a commendable job of navigating the vague, complex, and sometimes conflicting Ethics Committee guidance and precedent while respecting the Committee’s exclusive interpretative authority.
The 456-page House Ethics Manual — containing the core House ethics regulations — was released in 2008. The Committee recognizes the need for further clarity, convening a working group in 2013 on conflicts of interest, but updated guidance on this and other issues has not been published.
OCE should also be granted limited subpoena authority so it can continue developing thorough factual records, especially given that members and witnesses appear to be increasingly unwilling to cooperate with investigations. This trend of declining cooperation could result in more OCE referrals for further review, as OCE may find it increasingly necessary for the Ethics Committee to step in with its full complement of investigatory tools.
Finally, House Rules should provide OCE more time to conduct reviews.
The current review period, lasting no more than 89 days, strains the capacity of subjects, witnesses, and OCE, and too few matters are able to be investigated satisfactorily during the rapid 30-day preliminary review phase. Many of the criticisms of OCE stem from this unnecessarily short review period.
The House should be proud of the significant improvements OCE and the Ethics Committee have made to the ethics enforcement process since OCE’s creation in 2008. Focusing on these legitimate areas for improvement is key to preserving this progress and increasing the public’s confidence in Congress.
Bryson Morgan is a former Investigative Counsel at the U.S. House of Representatives Office of Congressional Ethics. Morgan has conducted in depth investigations into alleged misconduct by Members of Congress and congressional staff. He is an attorney at the Caplin Drysdale law firm where he handles a specialized public policy portfolio including campaign finance, lobbying, “pay-to-play,” and ethics laws.
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