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Last week, the Washington Post had a story discussing potential conflicts of interest of the members of the House ethics committee over its investigation of alleged earmark irregularities linked to the lobbying firm PMA Group. PMA has close ties to a number of Members of Congress, including the powerful chairman of the Appropriations Subcommittee on Defense, Rep. John Murtha (D-Pa.). It turns out that the 10 members of the ethics panel have requested a number of earmarks from Murtha’s subcommittee.
Let me start by saying that I have met with the chairwoman and ranking member of the Committee on Standards of Official Conduct (the formal name of the ethics committee), Zoe Lofgren (D-Calif.) and Jo Bonner (R-Ala.), along with key staff. Those meetings reinforced my initial impression: This is the best-functioning ethics panel in a long time, and Lofgren and Bonner are the first ethics leaders since Reps. Howard Berman (D-Calif.) and Joel Hefley (R-Colo.) who are eager and willing to work together in a bipartisan (or nonpartisan way) as well as determined to use the process to secure and reinforce the reputation of the House of Representatives. They have an outstanding collection of eight other Members.
That said, the Post story reflects not the ethical lapses of Lofgren, Bonner, et al.–they are people of high integrity–or their ethical insensitivity, since all Members of Congress will fight for projects in their districts. It does reflect the underlying dilemma that faces every ethics committee in Congress under the constitutional directive that the House and Senate will police the conduct of their own Members and staff. It is very difficult to erase the conflicts that come when people are judging their colleagues–some allies, some adversaries, some rivals–whose lives and careers are intimately intertwined.
The result is often a “damned if you do, damned if you don’t” dilemma for the committee: Exonerate your colleagues, and you are engaged in a coverup or an old boy protection racket; punish them, and you are engaged in a political vendetta. That comes with the territory, and all who love Congress have to be grateful when lawmakers take on the thankless and time-consuming task of serving on the ethics panel and when they take their responsibilities seriously, however the chips may fall. That, sadly, has not been the norm in recent decades; neither party was serious about having a robust, assertive, honest and tough-minded ethics process to protect the integrity of Congress. Thank goodness that’s the way it is now. But it is not enough.
The need to try to move beyond that dilemma, while still respecting the requirements of Article 1 of the Constitution, is what has motivated me and other reformers for more than two decades to try to create an independent adjunct to the internal ethics process, one that could bolster the committee in its role while ensuring that there was a robust ethics process even in times when the committee was dysfunctional. After an arduous process, with hostility and suspicion permeating both party caucuses in the House, but with the terrific leadership of Rep. Mike Capuano (D-Mass.) and the tough-minded intervention of Speaker Nancy Pelosi (D-Calif.), the independent Office of Congressional Ethics was created last year and is now up and running.
Sadly, the process of creating the office was not, in the end, bipartisan. The Republican leadership strongly opposed it, and few Republicans voted for it. It barely made it through and was diluted along the way. But to the everlasting credit of Minority Leader John Boehner (R-Ohio), despite his opposition, he appointed sterling individuals, some but not all former lawmakers, to be a part of the office, including ex-Rep. Porter Goss (R-Fla.) as co-chairman and one of the all-time great former Members of Congress, Bill Frenzel (R-Minn.), as a member. Pelosi chose the best possible chairman, David Skaggs (D-Colo.), another all-time great former House Member of impeccable integrity, and the wonderful Abe Mikva as another member.
By all accounts, the office has gotten off to a great start. Skaggs and Goss hired a first-rate staff and have worked together hand-in-glove; they and the rest of their colleagues, who range widely across the ideological spectrum, are committed to being fair-minded and tough-minded at the same time. And they are committed to bringing a refreshing transparency to the ethics process. They are issuing quarterly reports, including one just out in July, that describe their process and indicate their actions. In the second quarter, they commenced preliminary reviews of 14 cases, terminating four of them, beginning second-phase reviews on six, doing more extensive work on four of those and referring six matters to the ethics committee, five for further review and one for dismissal.
There are many questions that remain about this new-style ethics process. Will the rejuvenated ethics committee fully understand that the Office of Congressional Ethics is an asset for it, not a rival for control, power, turf or staff? Will the OCE be able to do its duty fully without any subpoena authority–a key power to get witnesses to cooperate that the House denied the office when it was created? Will the two entities, as we move into a period where ethics issues will be pushed into the forefront–with questions about the financing of lawmaker trips, the earmark controversies, a set of allegations of miscreance by individual Members, including some of the most powerful and prominent–be able to withstand the intense pressure from Members of both parties and follow through with investigations and appropriate recommendations for punishment when called for? And to withstand the criticism from watchdog groups, editorialists and media personalities, when they appropriately exonerate Members who have already been convicted by those groups and media outlets?
The Senate has its own ethics problems, with several Senators under scrutiny for inappropriate conduct. But unlike the House, the Senate has refused repeatedly to create an independent outside entity to help it get through the minefield or to protect its integrity. For all the problems, I am feeling more confident than in a long time that the House will get through its ethics storm in a good way. I wish I could feel the same about the Senate.
Norman J. Ornstein is a resident scholar at AEI.
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