Posted March 6, 2008 by Meredith McGehee and Tara Malloy

Fear of the Paper Tiger

The following was published as a Guest Observer piece in The Hill on March 5, 2008 under the title, "The Proposals - There's Bad and There's Worse."

The last-minute maneuvering on the proposal to create an Office of Congressional Ethics (OCE) reveals that there remains a large contingent in each party on Capitol Hill that has no interest in strengthening ethics enforcement.

House Speaker Nancy Pelosi (D-Calif.) certainly deserves credit for her strong push for changing the current discredited ethics process. Unfortunately, even the original proposal cobbled together by Ethics Task Force chairman Michael Capuano (D-Mass.) lacks the most basic investigative powers necessary for meaningful ethics enforcement, specifically access to subpoena power and the authority to accept ethics complaints from outside groups.

And the alternative proposal offered up by Minority Leader John Boehner (R-Ohio) and Rep. Lamar Smith (R-Texas) doesn’t really even meet the laugh test, totally missing the difference between upholding high ethical standards with violations of criminal law.

But the question at hand has boiled down to whether the Capuano proposal is a step forward or a step sideways. The truth is, one can argue it both ways. It would set up for the first time an entity that includes outsiders in the enforcement process. Some reform supporters believe that development in and of itself is worth moving forward. 

Others are concerned that the Office of Congressional Ethics as proposed would take the issue of ethics enforcement off the table for another few years and, because it lacks the powers needed to be effective, would simply provide cover for a continuing dysfunctional process.

If these were the only questions, it would be a worth debating. Unfortunately, the attacks are also coming from those who believe the Capuano proposal is not too weak, but too strong.

The Boehner/Smith proposal leaves the flawed ethics committee process in place and instead wants to boot many of the hard questions to federal law enforcement agencies. This tendency to “criminalize” ethics issues is one of the problems in the current process. Certainly, there are ethical transgressions that violate criminal statutes, but not all do. The standards are, and should be, different. The House has its own constitutional duty to set the standards for its members. That is the key reason for having ethics rules. While all criminal behavior may be unethical, not all unethical behavior is criminal. The House should be in the business of focusing on the latter, not the former.

Others, like former House General Counsel Thomas Spulak, claim that such an entity would be unconstitutional. He argues that such an Office would unconstitutionally encroach upon the authority of the Ethics Committee.

Apparently, he believes mere recommendations by the OCE — recommendations that under the Capuano proposal are unenforceable — constitute a potential constitutional violation even though no provision of the Constitution is cited.

The Rulemaking Clause of the Constitution grants Congress broad discretion to establish its own internal procedures, including ethics rules, and to investigate and discipline its members. The House has exercised this authority in the past by hiring outside counsel to augment its own ethics investigations, including in the investigations of former Speakers Newt Gingrich and Jim Wright.  The creation of an ethics office within the legislative branch falls well within this tradition and is well within Congress’s constitutional prerogatives.

In reality, the problem with the original Capuano proposal was that it did not go far enough. The proposal would still prevent outside groups from filing complaints. The latest changes proposed by Capuano, apparently in an effort to attract sufficient support, would only further weaken the measure. They would simply replicate the dysfunctional “bipartisanship” that has resulted in gridlock at the Ethics Committee, which is split evenly by party and where meritorious complaints may languish for lack of bipartisan will to investigate. This is likely to result in the same kind of stalemate we currently see with the Federal Election Commission, where Senate Minority Leader Mitch McConnell (R-Ky.) is holding all of the nominations hostage because of his insistence on one unacceptable nominee.

Never has such a powerless proposed entity provoked this level of fear. The OCE would have no access to subpoenas; nor could it compel testimony, a disturbing weakness.  The Ethics Committee, by majority vote, may usurp an inquiry at any stage. The OCE’s reports and recommendations to the Ethics Committee have no legal effect. In fact, the reports in many cases would not even be released until the Ethics Committee has had a matter under review for one year without resolution.

The most confounding aspect of this whole debate is that a weak, and some might argue toothless, OCE could incite such vehement objections in the first place. These critics are quaking before a paper tiger. Do they even believe there is a need to increase the credibility of the current ethics enforcement process? Or do they like things just the way they are?

Transparency and accountability were promised on the campaign trail last cycle, demanded by voters at the polls and are the very least that the country deserves from its elected officials. While the Senate leaders have given up on improving ethics enforcement, the House Democratic leaders deserve credit for moving forward and forcing a proposal to the House floor. When that proposal comes to the floor, they should stop trying to appease those who don’t want reform in the first place, and instead present a rule that would the proposal to be strengthened by giving the Office of Congressional Ethics access to subpoena power.