Eliminate redundancy, confusion within congressional ethics process

While there were several reasons that were cited as the basis for the establishment of a parallel, if not competing, entity devoted to the enforcement of ethics among House members, the foremost among them seemed to be the fact that there was a belief that Congress’s own Ethics Committee was not up to the task of policing its own. The Ethics Committee, comprised only of sitting members of Congress, was believed to lack the objectivity needed to ferret out corruption and rule breakers from among its colleagues. As a result, many editorial boards and interest groups demanded there be outsiders involved in the process. Thus, the OCE was born.

{mosads}As it has become more active and has begun to aggressively pursue novel theories of improprieties, the OCE increasingly is subjected to criticism. Chief among the arguments is that it lacks the requisite sensitivity to the fact that in the political environment in which members of Congress exist, the public disclosure of the targets of the OCE’s attention are not afforded the benefit of being innocent until proven guilty. Merely being identified as being under the microscope of the OCE is tantamount to being convicted and sentenced. Other complaints include the fact that OCE plays a redundant role with that of the House Ethics Committee and, in fact, interferes with the work that the Ethics Committee undertakes. Finally, the OCE is not inexpensive and adds to the cost of operating the Congress. 

Whether deserved or not, Congress does have an appearance problem. It is all too easy to level charges of cronyism against the members of the Ethics Committee for its refusal to investigate and sanction their colleagues. But the OCE as currently constituted is not the answer. To address the perceived need for the involvement of outsiders along with the need to make the ethics process more effective and efficient, the new Congress should bring the participation of outsiders within the auspices of the constitutionally empowered Ethics Committee.

The current board of the OCE is comprised of highly respected Democrats and Republicans who are motivated by good intentions. There should continue to be a role for outsiders such as these individuals in the ethics process; but, rather than have them as part of a separate competing entity, why not use them as an adjunct of the Ethics Committee, specifically as a grand jury? Under this plan, they or others like them would sit as a grand jury within the House Ethics Committee.  Any member of the Ethics Committee could request that a matter be briefed and presented to this grand jury to determine if a particular matter should be the subject of a formal Ethics Committee investigation under its current rules. Information regarding possible rule violators will flow to members of the Ethics Committee as it always has, including the passing on of already-drafted complaints by outside watchdog groups. The Ethics Committee’s nonpartisan staff would be required to present the case to the grand jury and, if two-thirds of the group found that by a preponderance of the evidence it was likely a violation occurred, the Ethics Committee would begin a formal investigation.

A matter that did not meet the preponderance standard and thus was not referred to the Ethics Committee for investigation would not be made public. Matters that were subsequently investigated by the Ethics Committee would be made public under the current rules and practices of the Ethics Committee.

There might well be a need to bolster public confidence in the congressional ethics process. The OCE was a good attempt but failed to adequately account for the political consequences of the mere suggestion of wrongdoing. Borrowing the use of outsiders from the OCE and bringing them within the authority of the Ethics Committee can eliminate redundancy, confusion, interference and result in a more robust ethics process.

Spulak is a King & Spalding partner in the Government Advocacy and Public Policy Practice Group. He served as Democratic staff director and general counsel of the House Committee on Rules, and as general counsel to the House.