Let’s Get Ethical

Late Monday night the House Rules Committee voted to absorb the independent Office of Congressional Ethics into the House Committee on Ethics, effectively eliminating the Office’s independent status. The move came about when the Rules Committee voted in favor of an amendment by Virginia Rep. Bob Goodlatte to the larger Rules bill that is typically voted on early in the new congressional session by the full House of Representatives to govern the House as it goes about its business the rest of the term. 

The move by Goodlatte was surprising but the reaction was not. Immediately news outlets reported the action with words like “gutting” and “cripple“, many insinuating that the amendment came in a secret late night vote on a holiday to slip a clandestine plan past an unsuspecting public. To their credit, the move would have gutted the current core mission of the OCE, it did happen around 8:00 p.m. and it was a really bad PR move on Goodlatte’s part. News outlets did a good job of reporting the core story and reporters can be given some leeway with strong headlines given the aura of fear and uncertainty surrounding the new administration. For many in the general public it was just another sign of corruption in Washington, abuse of power by the Republicans and evidence that president-elect Donald Trump isn’t draining the swamp but rather opening the floodgates.

While Goodlatte’s move certainly isn’t popular, assuming he speaks for the GOP as a whole misses the real story here. Leadership disapproved of his amendment from the start. The real story is two fold. Firstly, any wrong move a Republican takes will immediately face sharp scrutiny regardless of the larger party’s stance on the issue or its merits. Secondly, comprehensive reform of the OCE at the start of a highly scrutinized congress is a massive move and flew in the face of leadership. Paul Ryan might have won reelection as Speaker of the House on Tuesday by all but one Republican vote but there is a real scenario that plays out in 2017 of a divisive and fiercely independent Republican Party. We have already seen battles between the House Freedom Caucus and the rest of the party and only a few months ago we were predicting an internal GOP civil war in the aftermath of a Trump loss. Clearly, just because Trump won does not mean old wounds have healed overnight.

To his credit, Goodlatte had his justifications. He released a statement after the adoption of the amendment that stated the move would:

“Strengthen the mission of the Office of Congressional Ethics (OCE), improve due process rights for those subject to an investigation, and ensure that complaints made by the public have a strong venue for review.”

Goodlatte’ direct statement on the move was as follows: 

“The amendment builds upon and strengthens the existing Office of Congressional Ethics by maintaining its primary area of focus of accepting and reviewing complaints from the public and referring them, if appropriate, to the Committee on Ethics. It also improves upon due process rights for individuals under investigation, as well as witnesses called to testify. The OCE has a serious and important role in the House, and this amendment does nothing to impede their work.”

The amendment would have renamed the OCE to the “Office of Congressional Complaint Review”, required that the office obtain permission from the House Ethics Committee before it releases findings to the public, prohibited the office from employing a communications staffer or accepting anonymous tips and it prevented the office from investigating violations of criminal law which must be passed to the House Committee. 

Goodlatte’ statement provides some clarity about intent:

“The…amendment builds upon and strengthens the existing OCE by maintaining its primary area of focus – accepting and reviewing constituent complaints – while improving upon due process rights for individuals under investigation, as well as witnesses called to testify.

Feedback from Members and staff having gone through review by the OCE has been that those under investigation need increased protection of their due process rights, greater access to basic evidentiary standards, and a process that does not discriminate against them for invoking those rights. The amendment seeks to strengthen each of these needs while maintaining the basic core of OCE’s functions.”

The OCE was founded on March 11, 2008 when the House was controlled by the Democrats. The OCE’s mission is:

“to assist the House in upholding high standards of ethical conduct for its Members, officers, and staff and, in so doing, to serve the American people.”

The OCE is governed by an eight person board of directors who cannot serve as members of congress and cannot work for the federal government. Review processes require the approval of this board and are designed to be short, lasting typically three months or less. The current board is co-chaired by David Skaggs and Porter Goss. Skaggs served as a Democrat Congressman from Colorado in the 1990’s. Goss was a Republican Congressman from Florida from 1987 until 2004 before working with the CIA for several years under the Bush Administration. 

By all accounts the office has taken its job very seriously and has wide support among the public and watchdog groups while some in Congress have stringently opposed the wide latitude the office receives. In 2010 The Hill stated “The extent and level of ethics scrutiny the OCE has brought is unprecedented in the House.” The Sunlight Foundation has stated “More than anything else the Office of Congressional Ethics has helped to reveal to the public the patent absurdity of the self-policing oversight that members provide through the House Ethics Committee.” According the Buzzfeed News “the office has investigated more than 100 alleged ethics violations, passing on roughly a third to the House Ethics Committee for review before publicizing their findings.” Time put out a piece on the three biggest revelations the OCE has made in its brief existence including lavish trips and gifts to congress and congressional families sponsored by a foreign company and attempts to influence testimony in a multi-million dollar settlement. The very good reason the OCE exists at all is due to the massive scandals involving Jack Abramoff.

While Goodlatte had multiple reasons, the primary issue for him appeared to be due process concerns, Politico reported:

“sources said several members currently or formerly under the OCE’s microscope stood up to support the pitch, which was eventually adopted by a vote of 119 to 74.”

It’s natural to assume that scummy politicians would want to be scummy and support an amendment to return control of the china shop to the bulls but due process concerns are legitimate concerns. The Politico report goes on to describe two of the representatives who supported the Goodlatte amendment who were the subjects of OCE investigations. Texas Republican Blake Farenthold came under investigation when he was accused of sexual harassment by a staffer. The OCE eventually recommended dropping the issue and later a civil court threw out the plaintiff’s case. Republican Sam Graves of Missouri has his own story. According to McClatchyDC:

“In 2009, the Office of Congressional Ethics recommended a formal investigation of Graves for inviting a business associate of his then-wife to testify on renewable fuels before the Small Business Committee, which Graves chaired. The businessman, Brooks Hurst, was invested in the same ethanol and bio-diesel cooperative as Graves’ wife. Graves’ colleagues on the House Ethics Committee eventually cleared him of any wrongdoing and criticized the watchdog for its handling of the case.”

The issue is not simply a Republican one either. McClatchy quoted Missouri Democrat Emmanuel Cleaver who stated:

“I’ve listened to a lot of Democrats last night all the way to this morning saying, ‘Why did they mess this up like this?’ Because if they had called (House Democratic Whip) Steny Hoyer and said, ‘Hey, can you give us 10 guys to work with our 10 guys to fix it?’ we could have avoided all of this. Now even when we try to make repairs, there are going to be those who say, ‘Well, they’re trying to figure out a way to weaken the office.’ What we’re trying to do is make sure members of Congress receive the same protections as everyday citizens.”

While the zealous nature of the OCE and the diligence with which it carries out its duties might lead it to be popular amongst the public, that love surely does not translate into the halls of Congress where low-level staffers and members alike are under the microscope.

The amendment passed out of the committee as part of the larger rules package. The next day the amendment was dropped and the rules package approved without it. The combination of bad press, opposition by leadership and even somewhat critical tweets by the president-elect combined to kill the move. While the OCE will live to fight another day the brief fight over its existence has provided an informative window into what the 115th Congress will look like. There will be sharp divisions among the Republicans and a good deal of independent thinking by the representatives. GOP leadership will have their hands full and might not be the Machavellian villains they are often painted as. Members appear to be champing at the bit for substantive reforms straight out the gate. After all, Senator Ted Cruz and Rep. Ron DeSantis introduced a constitutional amendment to impose term limits on members. Under their change representatives would be allowed to serve three two-year terms while senators would be allowed to serve two six-year terms. Donald Trump will likely continue to play the populist, paying attention to the news cycle and using the power of the presidency to back larger public opinion even at the expense of his own party. It is important to note that this whole battle was a House rules issue and would not have required a presidential signature to pass. 

Lastly, this might not be the last battle over the OCE for this Congress. Oklahoma Republican Tom Cole told Bloomberg that “leadership promised a bipartisan solution by August to resolve some lawmakers’ concerns about the ethics office.”

Even McCarthy who opposed the amendment said on MSNBC:

“One thing we firmly believe in America is due process. People have a right to defend themselves if they’re being accused of something.”

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