Ethics panel memo points out problems before vote

Hours before a critical vote on a measure creating an independent House ethics office, the top Republican on the House ethics panel has circulated an internal committee analysis highlighting potential problems.

The committee memo penned by Ken Kellner, a senior counsel on the ethics committee who like other panel staff is considered non-partisan, spells out how a new ethics entity made up of non-lawmakers would impinge on the regular work of the ethics panel. The Nov. 9 analysis was circulated by ethics committee ranking member Rep. Doc Hastings (R-Wash.).

{mosads}The House is set to vote Tuesday night on the controversial proposal to create an Office of Congressional Ethics (OCE). Members of the Democratic whip team Tuesday were still scrambling to come up with the votes to pass it amid open Democratic rancor and widespread opposition among Republicans.

It is unclear how the release of the memo will impact the vote on the creating the OCE which has been repeatedly criticized for potentially conflicting with the work of lawmakers on the House ethics panel. Democratic leaders have had to yank the bill from a scheduled House vote twice during the past two weeks.

In a dear colleague letter attached to the memo, Hastings criticized Rep. Mike Capuano (D-Mass.), who headed the ethics task force that produced the proposal, for not joining Rep. Lamar Smith (R-Texas), the ranking member of the task force, in asking for the ethics committee’s legal opinion about the OCE plan and its impact. He also chided Rep. Stephanie Tubbs Jones (D-Ohio), who chairs the ethics panel, for failing to join him in submitting the analysis to the ethics task force.

“I made this decision because I believe that before voting on the Pelosi / Capuano proposal it is essential that all Members have the benefit of the advice Congresswoman Tubbs Jones and I have received from our Committee’s legal staff,” Hastings wrote. “I have the highest regard for these nonpartisan professionals and believe the concerns they have raised warrant serious consideration by and Member of the House contemplating such a profound change to our ethics enforcement process.”

Capuano previously has said that he specifically decided against consulting the ethics committee about his task force’s proposal to avoid obvious conflict of interest issues.

The OCE would be comprised of six board members, none of whom could be sitting lawmakers. After taking allegations against members from outside groups and individuals, it would investigate them and decide whether to forward them on to the full ethics committee for further review.

Speaker Nancy Pelosi (D-Calif.) has pushed for the creation of the OCE as a way to fulfill her commitment to usher in a new era of ethics reform and fix a broken process that has suffered from partisan deadlocks, inaction and secrecy.

Hastings's memo includes an e-mail from ethics committee staff director Bill O'Reilly, who also criticized the proposal creating the OCE.

"See Ken's notes below–he has focused on those parts of the proposal which are most likely to negatively impact us," O'Reilly wrote. "As you know, I think the proposal is a bad idea on a number of levels, but I don't have anything specific to add to Ken's critique at this point."

Kellner addressed six major areas of the bill that warrant particular concern, including the possibility that witnesses could offer conflicting testimony to the new office and the ethics panel.

He said the fact that the new “office” or “board” could take up ethics matters on its own initiative and interview witnesses raises “several concerns,” including the possibility that if witnesses give different testimony to the office and the panel, that witness’s testimony would be undermined.

Witnesses offering testimony to the new office would in doing so learn about what or who the office is investigating. If those witnesses talked, it could hurt probes launched by the ethics panel, the memo said.

“Sometimes there are valid investigative reasons not to reveal the existence of an investigation to a witness until other witnesses are interviewed or other evidence obtained,” the memo states. “In the course of its proceedings, the new entity might reveal critical evidence or information to key witnesses.”

“The failure of those witnesses to keep information confidential may be very harmful to the integrity of any future Committee inquiry,” he added.