Ethics plan to take heat from all sides

Caught in the middle of a tug-of-war between watchdog groups and House colleagues, Rep. Michael Capuano (D-Mass.) has been struggling to put the finishing touches on a proposal for a new House ethics office.

Capuano, who chairs the ethics task force, could unveil his latest version as early as this week with a vote on it planned before the House adjourns later this month. The open question is whether the plan, which creates a new outside oversight entity on House ethics, will get enough votes to pass.

{mosads}Speaker Nancy Pelosi (D-Calif.) put Capuano in charge of the thorny ethics issue earlier this year, and the reluctant chairman has never been shy about wanting to get the thankless job behind him as soon as possible. Initial proposals sank under pressure from both sides, however, and this week Capuano is bracing for a fresh round of criticism.

Critics have already begun piling on to his latest proposal. They include lawmakers afraid of handing any power to police members’ behavior over to an outside body and watchdog groups worried that the new office will lack the investigative tools it needs to make a difference.

“I look at this proposal and it kind of makes me shrug my shoulders,” Meredith McGehee of the Campaign Legal Center said of the latest version of the plan. “It would have been great to have been pleasantly surprised, but there’s nothing that I look at and say, ‘Wow, they’re really taking this seriously.’”

Watchdogs have focused most of their recent criticism on the panel’s lack of subpoena power, an investigative tool reform groups argue is necessary in order for it to vet charges against members in a thorough manner.

“Access to subpoena power is a central issue to us in terms of having a body that has the authority to carry out its role,” said Fred Wertheimer, who heads Democracy 21.

Meanwhile, GOP critics have already circulated 10 written arguments against the proposal before the task force finalizes and officially releases it. The criticism plays on members’ fears about an independent ethics office’s ability to engage in political witch-hunts, using pejoratives such as “star chamber” and references to the “tail wagging the dog.”

Capuano is walking a tight diplomatic line, trying to reach out to Republicans on the panel but demonstrating a willingness to move forward with the Democratic proposal if no consensus can be reached.

“I recognize and expect that some Members will not accept any independent entity, regardless of how it is constituted, and do not support increased transparency,” he said in a written statement. “I understand those concerns but I do not agree with them. Nevertheless, I remain committed to a bipartisan effort although I understand that there may be issues upon which we simply agree to disagree.”

According to the latest draft of the Democratic proposal creating an Office of Congressional Ethics (OCE) circulated late last week, key components include the following:

• Oversight would be provided by a six-member board that is either appointed jointly if the Speaker and Minority Leader can agree on selections, or in a partisan manner if no agreement can be reached.

• Board members would have limited financial disclosure, would have no restrictions on outside earnings and would not be subject to a gift ban.

• Board members must be private citizens including former members or staff, but they cannot be lobbyists.

• Any two of six board members can self-initiate a preliminary inquiry based on information from any source.

• Unless a bipartisan majority of the board votes within 30 days to terminate an inquiry, the OCE may launch a more serious probe for another 45-60 days.

• At the end of the second phase, referral to the House ethics committee is mandatory.

• OCE may transmit to the ethics committee its findings of fact and supporting documentation, noting whether it recommends the charges’ dismissal, further investigation or is unable to agree on a recommendation.

• OCE also would provide the ethics committee with a list of documents it was unable to obtain and witnesses it was unable to interview – in addition to a list of subpoenas it recommends the ethics committee issue.

• OCE may not disclose to the ethics committee the names of “cooperative witnesses.”

• The ethics committee may direct the OCE to halt investigation at any point in the process.

• Virtually all OCE reports and findings must eventually be released publicly.

Republicans’ chief complaints focus on the potential for partisan appointments to the OCE’s board and for just two of the board’s six members to launch investigations against members.

“Enabling just two of the board’s six members to launch investigations is patently undemocratic, and — especially given the likelihood of partisan appointees to the board — would leave members of both parties vulnerable to politically motivated (but unwarranted) ethics probes,” stated a copy of the GOP arguments.

Ted Van Der Meid, a lawyer at McKenna, Long & Aldridge, handled all legal and ethical issues for then-Speaker Dennis Hastert (R-Ill.) before Democrats regained the majority this year and served as staff director and chief counsel to the House ethics committee during the mid- to late-1990s. Van Der Meid argues that the Democratic proposal goes too far and leaves members vulnerable to partisan ethics inquiries.

He criticized the fact that the proposal adds another level of investigation run by non-members, and also faulted it for allowing partisan appointments and enabling  two board members to launch an investigation.

“I would argue that those taken together is not the way I would go,” he said.

During his tenure working for Hastert he said the Speaker and minority leader were able to agree on candidates for the Office of Compliance, the Office of Emergency Planning and Preparedness and the House Inspector General.

McGehee said those complaining that the new proposal goes too far oppose the creation of any kind of independent ethics entity and are happy with the status quo that created an environment where corruption ran rampant.

“It shows to me just how tone deaf they still are,” she said. “They still don’t get it. They just don’t understand the credibility loss that has occurred.”