A former OCE investigative counsel weighs in on how it should be reformed

[Daniel Schuman]

http://thehill.com/blogs/pundits-blog/the-administration/313751-office-of-congressional-ethics-too-important-to-be-a

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.

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.

[Josh Tauberer]

Relatedly, we just ran an article on ethics committee reports at GovTrack:

https://govtrackinsider.com/with-congressional-ethics-on-the-line-we-looked-at-where-the-ethics-committees-have-found-4de0f79b64c7#.g0vilsu3d

Josh

With congressional ethics on the line, we looked at where the Ethics committees have found violations.

The Senate and House Ethics Committees are bipartisan committees that evaluate potential ethics violations by senators, representatives, and their staff. The committees can find fault, for which the committee can take action, or not find fault. As a new session of Congress begins, GovTrack Insider examined all Senate and House Ethics Committee reports during the Congresses of the past 16 years.

Who did they investigate? Was fault generally found, or not? And did it ever affect a Congress member’s reelection?

Since 2001, the two ethics committees released 49 reports: 41 from the House and 9 from the Senate. Most of the reports related to individual members of Congress, though not all. Several reports jointly combined the possible ethics violations of several members who all committed the same possible infraction, such as when four House members were arrested for protesting outside the Embassy of Sudan. A few reports also relate to staff members, such as one House member’s chief of staff and another who worked on a different House member’s campaign. And one report also related to lobbying activities.

[The complete list of 21st century ethics reports, as compiled by GovTrack Insider, can be found here. We wrote about the related House Office of Congressional Ethics last week after Republicans tried to weaken the office.]

The five ethics reports in the last Congress

The 2015–16 Congress that just concluded last week issues five ethics reports, all on the House side.

1. Rep. Jared Polis (D-CO2) was cleared in December 2015 after a complaint that he used his official resources for the promotion of a business endeavor, when he appeared inin a video for the video game company Riot Games and an event for the men’s clothing company Ninox. The Committee found Polis did not violate any law or House rules, since both the video and events were done with the intent of constituent outreach rather than financial benefit.
   The Ninox example contains almost certainly the most entertaining excerpt from an ethics committee report during the past two years. GQ Magazine wrote an article about D.C. fashion which criticized Rep. Polis as having the “worst Congressional style ever.” The founder of Ninox reached out to Polis’s office suggesting they do a makeover of Polis using Ninox’s products, which were paid for using Polis’s funds but which Ninox publicized in a way that seemingly indicated Polis’s endorsement of the company.
2. Nine House members of both parties were jointly cleared after an official trip to Azerbaijan was discreetly funded by the nation’s state-owned oil company, which was a front created through $750,000 funnelled by the Azerbaijan government. The House members also received gifts such as ornate rugs and a six-piece crystal tea set. The investigation also attracted controversy after the Office of Congressional Ethics, a nonpartisan outside body which conducts preliminary investigations before the House Ethics Committee does, saw its findings leaked to the Washington Post prior to their official release five months later.
   It remains possible that the the nine House members could still be charged by the Department of Justice. The nine House members are: Reps. Jim Bridenstine (R-OK1), Yvette Clarke (D-NY9), Danny K. Davis (D-IL7), former Rep. Rubén Hinojosa (D-TX15), Sheila Jackson Lee (D-TX18), Michelle Lujan Grisham (D-NM1), Gregory Meeks (D-NY5), Leonard Lance (R-NJ7), and Ted Poe (R-TX2).
3. Rep. David McKinley (R-WV1) was issued a “letter of reproval” in September 2016 for his apparent violation of the Ethics in Government Act (EIGA), after he didn’t change the name or sufficiently sever ties with the engineering firm McKinley & Associates which he founded in 1981. House rules prohibit any members from associating with companies that could do business with Congress or the federal government and which bear the name of a Congress member. The Committee in 2011 had previously issued a formal advisory opinion that McKinley change his company’s name, but McKinley claimed that changing the name would harm its name recognition.
4. Rep. Vern Buchanan (R-FL16) was cleared on charges of ethics violations in June 2016. While the Committee did conclude that three car dealerships partly owned by Buchanan did illegally reimburse their employees for contributions to Buchanan’s campaigns, they found insufficient evidence that Buchanan himself was personally aware of reimbursements or had any role in approving them.
5. Rep. Ed Whitfield (R-KY1) was rebuked in June 2016 for failing to prohibit contact between his staff and his wife, as she lobbied for the Humane Society Legislative Fund. Whitfield’s staff was found to have helped arrange more than 50 meetings for his wife, Constance Harriman Whitfield. However, the Committee found that Whitfield did not violate the rule against improperly using his position for his own self-interest, or benefit himself or his spouse, though they did find he didn’t “take sufficient care” regarding standards of conduct, which is not a punishable offense.

All five of the ethics reports in this past Congress either resulted in the charges being clear or a “letter of reproval” rebuke, the lowest form of punishment the committee can issue to a Congress member.

Office of Congressional Ethics impact on House Ethics Committee reports

Last week, House Republicans attempted to rename and significantly limit the powers of the existing Office of Congressional Ethics, which issues advisory findings without legal force for the House Ethics Committee to pursue. The move was quickly backtracked after a public outcry, but the desire of most House Republican to see the Office either curtailed or eliminated since its 2009 inception is no secret, and the move may be attempted again either later this year or within the next few years.

[Read GovTrack Insider’s article on the move and its potential policy implications here.]

According to a report from Public Citizen, 20 members of Congress were disciplined for ethics violations between 2009 when the OCE was created and 2014. That’s a substantial uptick from the 10 disciplines for ethics violations during the 11 years between 1997 and 2008.

The House Ethics Committee has held 36 investigations since OCE’s January 2009 start. According to a GovTrack Insider analysis, seven of these investigations were under 2009–10 Democratic control for an average of 3.5 per year, while the other 29 investigations have been under 2011–16 Republican control for an average of 4.8 per year. Republicans may oppose the OCE, but while helming the actual Ethics Committee which ultimately hands down decisions, they’ve been a bit more active than their Democratic counterparts. (It’s unclear whether that’s a result of the Republicans using the committee more aggressively or if there have legitimately been more apparent ethics violations in recent years.)

And lest one think the GOP misuses the committee for witch hunts against Democrats, 12 of the House Republicans’ 22 ethics investigations into individual members — as opposed to centering on a lobbyist, staff member, or group — were into fellow Republicans. Similarly, three of the four Democratic-led investigations into individual members were against fellow Democrats. (To be clear, not all of the investigations have resulted in a finding of fault or in punishment.)

Notable ethics reports from the past 16 years

The most noteworthy Ethics Committee findings are the ones that may have contributed to a member of Congress’s retirement or electoral defeat — or even imprisonment. Among those in the 21st century include:

• Former Sen. Robert Torricelli (D-NJ), who dropped his November 2002 reelection bid that October after a Senate Ethics Committee report“severely admonished” him for accepting free gifts from a campaign donor and imprisoned businessman, including a bronze statues of an eagle and a bronco.
• Former Rep. Nick Smith (R-MI7), who had already announced he wouldn’t run for reelection in 2004 but endorsed his son Brad Smith to take his seat. The Committee found in 2004 that members of the House Republican leadership including House Majority Leader Tom DeLay tried to coerce Nick Smith by promising that certain business interest would donate to Brad Smith’s campaign only if Nick Smith voted for the Medicare Modernization Act. Brad Smith was defeated in the Republican primary by Joe Schwarz, who would later be elected
• Former Rep. Earl Hilliard (D-AL7), for whom the House Ethics Committee found in a reporting totalling more than 1,000 pages had used campaign funds for purposes such as personal loans and salaries of people employed at companies run by Hilliard. He lost his reelection bid in 2002 in part due to the 2001 ethics report and scandal (though also in part due to redistricting that moved most black voters out of the African-American Hilliard’s constituency).
• Former Sen. Larry Craig (R-ID), who was arrested in a Minneapolis airport men’s restroom for soliciting sex, then showed the arrest officer a card identifying himself as a U.S. senator and said, “What do you think about that?” Then he used more than $213,000 in campaign funds to appeal his criminal conviction. Craig declined to run for reelection in 2008 after the February 2008 ethics report.

Reports that weren’t released

The House Ethics Committee suspended its investigation against former Rep. Chaka Fattah (D-PA2) on corruption charges, which presumably would have resulted in a report and potentially sanctions, after Fattah was convicted on those same charges. Some members voluntarily take steps to prevent the release of an ethics report: former Rep. Nathan Deal (R-GA9) resigned from the House in 2010 mere hours before the Ethics Committee would have released its report, which is believed to have revealed that Deal improperly used his House seat to benefit his Georgia auto business.

The Ethics Committees in the new Congress

The chairs of the two committees for the current Congress have recently been announced: Sen. Johnny Isakson (R-GA) and Rep. Susan Brooks (R-IN5). For the Congress that just ended, it was also Isakson in the Senate but Rep. Charlie Dent (R-PA15) in the House. The Senate Committee has so far announced an equal slate of three Republicans and three Democrats, while the House Committee so far has announced five Republicans and zero Democrats, though that will presumably be brought closer to parity with further appointments.

This article was written by GovTrack Insider staff writer Jesse Rifkin.