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The ethics process in Congress is broken. That should be clear to any objective observer of Congress.
The salutary cease-fire that took hold a few years back, in which Members of both parties refrained from using ethics charges as political tools, has morphed into a total blockage of action – the virtual disappearance of a meaningful ethics act. We have gone from one extreme to the other, made far worse of course by the reform that blocked any involvement of outside groups in initiating ethics investigations–once again a reasonable approach, given the hyperactivity of some outsiders, that has been turned into an abdication.
It is true, of course, that the House Committee on Standards of Official Conduct can initiate its own investigation, based on anything it wants, including news reports. And it is true that the committee in previous years, under the leadership of former Chairman James Hansen (R-Utah), current Chairman Joel Hefley (R-Colo.) and former ranking member Rep. Howard Berman (D-Calif.), did initiate some investigations, including Reps. Earl Hilliard (D-Ala.) and Corrine Brown (D-Fla.), and pursued others, including Reps. Bud Shuster (R-Pa.) and Jay Kim (R-Calif.).
If their penalties were too weak for my taste, at least they took on cases, reviewed them thoroughly and professionally, and issued reports that laid the facts on the table. And it is true that some investigations may be ongoing without our knowing about them. It may be appropriate that we don’t know. One of the problems of the old ethics process in the take-no-prisoners era was that Members got slimed before any of the facts were known or tested.
But we have every reason to believe that serious charges of misconduct out there are not frivolous, ranging from allegations about Financial Services Committee staff threatening problems for the Investment Company Institute trade association unless it fired its lobbyist, Democrat Julie Dominick, and hired a Republican in her stead, to the especially serious situation involving potential bribery attempts to sway Rep. Nick Smith’s (R-Mich.) vote on the Medicare prescription drug bill in December. The latter case involves more than a news story, hearsay or a casual charge. The flat words of Smith himself, captured on radio, make the charge real, direct and credible. How can the House not investigate an allegation of a bribery attempt, perhaps the most serious breach that can occur in a legislature? How can it not announce from the parapets that it is going to get to the bottom of something that challenges the very credibility of the House?
The current “truce” between the parties on ethics resembles the old “mutual assured destruction” dynamic between the United States and the Soviet Union. Neither side has been willing to launch a missile for fear that a dozen will be launched by the other side. Thus, Democrats, up to now, said little about the threat to Julie Dominick and talked rather than acted on the threat to Smith.
Now, frustrated by the lack of action and the lack of interest in any action by the majority leadership, Democrats may actually initiate an investigation of the Smith case–with trepidation, since Republicans have made clear that retaliation will be the order of the day.
Two responses are in order. The first is a narrow one–and it fits the theme of my last column on the lack of oversight on grave issues of national and homeland security. This is less a problem of the ethics committee and its leaders than it is of the party leaders. I have seen nothing that would lead me to believe that Chairman Hefley or ethics ranking member Alan Mollohan (D-W.Va.) lack the integrity to do a thorough job if an investigation is triggered. I wish they would do so unilaterally, as is their right and duty. But these two cases, and especially that of Nick Smith, should be championed first and foremost by the Speaker and his top party leaders. It is becoming increasingly clear that they simply do not see the larger integrity of the institution as transcending the partisan interest in avoiding embarrassment (or worse).
Consider the comment by Hastert spokesman John Feehery, which rivals the “see no evil, hear no evil” comments he has made in the past about continuity of Congress: The Nick Smith issue was “really the purview of the ethics committee and not the Speaker’s office.” The ethics of the House is not the purview of the Speaker? Excuse me?
The second point is a larger one about Congressional ethics and how to police it. I have felt for decades that the process both houses of Congress have put in place is inadequate. Congress has been given the constitutional responsibility to police its Members, but by creating these in-house committees and vesting them with full authority, the House and Senate have put themselves regularly in damned-if-you-do, damned-if-you-don’t territory. Either they investigate an allegation and it looks as if they are pursuing a prominent Member for partisan or ideological reasons, or they pursue (or fail to pursue) and it looks like they are in the good-old-boy, cover-it-up mode.
Going outside to hire an independent counsel is not the answer–just as the Independent Counsel Act wasn’t the answer for investigating presidents or other executive branch officials. But a reasonable and sensible use of outsiders makes compelling sense. Congress needs a filtering group, consisting not of crusading prosecutors or outsiders who know nothing about politics or the legislative process, but of former Members and staff who have distance from the current battles but a sensitivity to the unique qualities of the legislature.
Allegations of ethics violations should come to this group, which can recommend that the ethics committee pursue them or decide that they do not pass the thresholds of probable cause or serious charge. The group would not get into territory that constitutionally must be left to the Members themselves–any verdict on violation or penalty recommended for it would be made by the ethics committees and ultimately by the membership of the body. By all means, set rules that reasonably limit–but don’t eliminate–the involvement of outside individuals or groups and that protect the privacy and reputation of lawmakers who are vulnerable to mudslinging for political purposes. But Mr. Speaker, do something to fulfill your constitutional responsibilities here and to protect the basic integrity of the institution you lead. And by the way, Mr. Senate Majority Leader, you should take the same reform step.
Norman J. Ornstein is a resident scholar at the American Enterprise Institute.
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