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As I write, the elections are not over — but by the time you read this, voters will have chosen the 113th Congress. The 112th, of course, is far from finished; it will be back next week, like a new installment of “Friday the 13th,” to finish unfinished business (farm bill, anyone?) and to grapple with the “fiscal cliff.”
But by constitutional direction, it will be replaced on Jan. 3 by the 113th. As always, the new House will begin by choosing its leaders and adopting its rules. And it is the rules — at least one of the rules — I want to address today.
In March 2008, by a narrow margin, the House created the Office of Congressional Ethics, an independent panel of six exceptional individuals appointed in equal numbers by the Speaker and the Minority Leader, with two additional alternates, to act as a screening panel to investigate allegations of wrongdoing by lawmakers and staff, and recommend actions to the House Ethics Committee.
The overwhelming majority of Republicans opposed the OCE; Democrats were split, but the strong efforts of then-Speaker Nancy Pelosi (D-Calif.) and the artful work of Rep. Mike Capuano (D-Mass.) in crafting a reasonable and balanced proposal and selling it to Members reluctant to give up any control over their reputations and political lives provided enough votes to put it over the top.
Once the OCE was created, the real critical decision was made: Would Pelosi and her counterpart, Republican leader John Boehner of Ohio, pick strong individuals to inaugurate the office, or partisans, ideologues and hacks? The answer was the former: The eight individuals chosen by the leaders were all terrific, spanning the ideological spectrum and with experience from inside and outside Congress, and all were dedicated to improving ethical standards in Congress and working together to make it happen. For that, Pelosi and Boehner deserve kudos.
Not surprisingly, the first serious independent watchdog in Congress had a tough shakedown period. The first two years involved intense turf warfare with the House Ethics Committee. Despite strenuous efforts from outside reformers (me included) to convince the committee’s leaders that the OCE was an asset — by screening possible cases, the OCE could both bolster evidence for cases that needed to go forward and provide protection for the committee against accusations of cover-up for allegations the OCE dismissed — they could not resist the temptation to reject several of its recommendations to move forward with inquiries and to attack the OCE at every turn.
Lots of Members did, too — especially those who had investigations initiated against them. Part of the compromise necessary to get the OCE established denied the panel any direct or indirect subpoena authority, and the lawyers for many of the potential accused refused to cooperate. But the OCE navigated skillfully through the mine fields, in significant part because every case, whether pursued or dismissed, brought consensus across all the Members of the panel. It was not perfect (I was particularly struck by the thoughtful criticism of Democratic Rep. Mel Watt), but through all the allegations the OCE explored, pursued or dropped, it did just what one would hope an independent investigative authority would do.
When the Republicans won the majority in 2010, there were serious questions about whether the OCE would survive to live another day. A number of leaders, including newly minted Majority Leader Eric Cantor (R-Va.), were anything but supportive in the aftermath of the elections.
But in part because of the support for a strong ethics process from tea party freshmen, the OCE survived, with all its members and alternates returning and continuing dutifully to do their job.
Now we have another moment of reckoning, this time with a greater challenge.
First is continuing to include the OCE in the rules. Second, under the resolution, four of the members lose their eligibility. The six members and two alternates — Co-Chairmen Porter Goss and David Skaggs, Yvonne Burke, Karan English, Jay Eagen and Allison Hayward, and Bill Frenzel and Abner Mikva — have all been exemplary in their conduct on the job.
The co-chairmen remain, and as a letter to the leaders from public interest groups notes, the alternates can be made regular members and the retiring members are eligible to become alternates. Whether there is some shuffle, or new members are picked, is for the leaders to decide.
But the bottom line is that if Pelosi and Boehner do not pick replacements, the OCE cannot function.
Any replacements should be as strong and credible and dedicated as the current eight. Here are some possibilities: former Members such as Kweisi Mfume, William Gray, Marjorie Margolies-Mezvinsky, Jack Buechner, Amo Houghton, Connie Morella and Chris Shays; retiring Rep. Charlie Gonzalez; former staffers such as Donald Wolfensberger (a Roll Call contributing writer), Ira Shapiro, James Ho and Scott Lilly; Harvard professor and ethics guru Dennis Thompson; former mayor and Cabinet officer Henry Cisneros; former Sens. Adlai Stevenson III, Nancy Kassebaum Baker and Paul Sarbanes; retiring Sen. Olympia Snowe; and former House Parliamentarian Charles Johnson.
If House Republicans, with the active support of many Democrats who would just as soon see the OCE fade away, try to drop the watchdog group from the rules package, I can guarantee it will not happen quietly. It will be seen widely, and accurately, as an effort to dilute any meaningful ethics process and return all power to what has become yet again an increasingly partisan and dysfunctional House Ethics Committee.
If Boehner and Pelosi do not step up with dispatch during the lame-duck session to pick replacement members for the departees, it will be met with equally loud criticism by those interested in integrity in the House. I will be among them.
Norman Ornstein is a resident scholar at the American Enterprise Institute.
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