Posted October 3, 2006 by Meredith McGehee

Ethics Committees: A Question of Credibility

By all means, the House Ethics Committee should look into the scandal involving now-resigned Representative Mark Foley (R-FL) and inappropriate emails to House Pages.  And while they are at it, they should ensure that they look into the Speaker’s role, including his apparent failure to take effective action about the matter even though he now admits he was informed in 2005 that Foley had sent questionable emails to a House page. 

But any investigations that emerge in the wake if these scandals will have about as much credibility as the current leadership’s insistence that they were on top of this matter which came to their attention more than two years ago.

The reason that a House Ethics Committee investigation will lack any semblance of credibility is that the current ethics process is so inherently flawed, so paralyzed and so discredited that it is likely no one will actually believe the committee was thorough or unbiased regardless of its findings or actions (assuming there are any taken).

The attitude of the ethics committee for too long has been one of accommodation – “what is it you want to do (or worse “what have you done”) and we’ll help you figure out a way,” rather that one of ethics enforcement.

Thus, it is no surprise that, as Roll Call notes, “offending actions by lawmakers and aides were brought to light by journalists, Justice Department investigators or both, not by the House’s self-appointed watchdog – the Committee on Standards of Official Conduct, known as the ethics committee – or by lawmakers scrutinizing each other’s behavior.”

The current congressional ethics process is beyond repair, either paralyzed by partisan gridlock or handcuffed by an approach which puts accommodation above enforcement.  When it comes to ethics enforcement, more of the same will give us more of the same.  Of course, the Speaker of the House decides who sits on the ethics committee for his party.  Enlisting the services of an outside counsel is the minimum that must be done in the Foley case, but even then, the process remains too flawed and the use of outside counsel is only a temporary fix that doesn’t get at the underlying systemic problems.  Will there only be unbiased ethics enforcement when the behavior of a Member hits the front page of every paper in the nation and that behavior is so reprehensible that the public demands an outside investigation?

There is an alternative that has gained strong support from key Members of Congress and groups interested in ethics and lobbying reform.  Earlier this year, Senate Homeland Security and Governmental Affairs Chair Susan Collins (R-ME) introduced legislation to create an Office of Public Integrity within Congress.  A similar proposal was introduced in the House by Representatives Christopher Shays (R-CT) and Marty Meehan (D-MA).

The OPI would be an independent, nonpartisan and professional office established in Congress to work with the ethics committees in both Houses of Congress to enforce ethics rules.   The OPI would be responsible for filtering out frivolous claims of ethics violations by Members, for investigating non-frivolous allegations, and for presenting cases of probable ethics violations to the ethics committees for action.  This would force the committees to take actions in cases where violations occur, something the House ethics committee in particular has been loathe to do up to now.  The ethics committees would continue to make the decisions about whether any violations of the ethics rules had occurred and would also have the ability to check actions of the OPI at earlier stages in the process.  In essence, the House and Senate ethics committees would no longer serve as the investigators, prosecutors and judges of potential ethics violations by their own Members, a process of inherently conflicting responsibilities that has resulted in a paralyzed, non-credible ethics enforcement system.

 The Senate defeated the Collins amendment to create such an Office earlier this year.  And the House Republican leadership would not even allow the Shays-Meehan bill to come up for a vote on the House floor. 

Cunningham, DeLay, Ney, Foley – certainly these are men who lost their way.  But any insistence that they are just a few bad apples who have yet to spoil the whole lot is sounding increasing hollow.  Who knows what other scandals may exist yet unearthed by Justice Department investigators or journalists?  Words and outrage are nice, but meaningful, reasonable action is what is needed.  The creation of a congressional Office of Public Integrity is the place to start.