Resident Scholar  Norman J. Ornstein

I did not want to write again about ethics in Congress. But the statement by House Minority Leader John Boehner (R-Ohio), following his appearance last week in front of the House Rules Committee, made me do it.

Here is a portion of Boehner's statement condemning the proposal from the bipartisan reform task force headed by Massachusetts Democratic Rep. Mike Capuano (with Texas Republican Lamar Smith as ranking member):

There is no point in grafting a pointless new bureaucratic layer onto the broken ethics process without fixing the Ethics Committee. The best way to deter unethical law-breakers in Congress is to make certain they face real law enforcement: the FBI and the Justice Department. That is the key to Rep. Lamar Smith's stronger Republican ethics proposal. There is a difference between pretending to reform the ethics process and actually doing it. Creating a new bureaucracy that would stand between Members of Congress and law enforcement agencies such as the FBI is not "reform." The minor tweaks announced today to the Pelosi/Capuano proposal will simply make it totally ineffectual. If the concern is that the Ethics Committee is gridlocked along partisan lines, what is the point of creating a new group with the same partisan stalemate--especially when the new group is not allowed to examine ethical violations that occurred before it was created?

The bottom line, though, is this: The Capuano plan is real reform, and the Boehner objections are a smokescreen.

When the task force was created, its mission was clear: To consider the creation of an independent entity to complement the ethics panel. It was not given the task of reforming the committee itself. Frankly, it should have been--the Committee on Standards of Official Conduct is feckless, lacking transparency and any broad credibility. Whatever credibility it did have was shattered when then-Speaker Dennis Hastert (R-Ill.) shamefully retaliated against the committee's GOP membership after it handled honorably its first serious case in years, that of then-Rep. Tom DeLay (R-Texas). But the role, and limits, of the task force were clear to all.

The task force met numerous times, holding informal hearings with outside experts and meeting itself to discuss options. Everyone knew what it was doing. It is true that GOP and Democratic members never committed in advance to accepting any specific proposal. But none ever said that creating a "new bureaucratic layer" was pointless, and therefore it was pointless to continue a charade of being part of the task force, much less offer critiques of specific proposals floated by the chairman or others.

That is just what Smith did, at many stages along the way. As for Boehner, his strong call for dramatic reform of the ethics committees is, shall we say, lacking in credibility. I have looked in vain for any objection Boehner made after the Hastert Massacre, when one of the casualties was his Ohio colleague Steven LaTourette (R). I have looked in vain for any trace or any sign that during the 12 years Boehner was in the majority, as a committee chairman and in the leadership, that he raised any issues with the performance, or lack thereof, of the ethics committee. Perhaps he spoke up in the Republican Conference when it tried to change its rules retroactively to allow DeLay to stay in a leadership role after his indictment, but I have seen no record to suggest it.

When CongressDaily reported that House Republican leadership staffers were drawing up a hit list of Democrats to slam with ethics charges if this independent entity were created, I waited in vain for Boehner to condemn the action and hold the extortionists responsible.

As I and others have pointed out many times, an independent ethics investigative arm, whatever its powers, is only as good as the people appointed to it. There are lots of good choices out there, from former Members like Joel Hefley (R-Colo.), Mickey Edwards (R-Okla.) and David Skaggs (D-Colo.) to former staffers like Ken Feinberg, and students of Congress and ethics like Dennis Thompson of Harvard--people of integrity, prudence and independence.

Under the Capuano plan, six members of the panel would have to be chosen jointly by the Speaker and Minority Leader to deter them from picking partisan pit bulls. It was therefore astonishing to have Boehner, in his appearance before the Rules Committee, basically say that he could not be trusted to pick the former types over the pit bulls. Why not?

Of course, it is not just Republicans who have opposed any independent and meaningful ethics process. Plenty of Democrats do not want to see this happen. The objections are particularly pointed from the "Old Bulls," who vividly remember Richard Phelan, appointed by the ethics committee as the equivalent of an independent counsel for the investigation of then-Speaker Jim Wright (D-Texas).

Phelan ran amok because of his own political ambitions. But their visceral reaction against him is disconnected from any rational examination of this careful plan, which has plenty of safeguards against partisan retribution or a vengeful or ambitious staff. There are understandable concerns, but a lot of this is people from both parties who would prefer to have no ethics process and no enforcement.

The tweaks made in the original plan are designed to address the understandable concerns while preserving its core. Boehner criticizes the changes for watering down the plan, but the ideas for change proposed by the Republican members of the task force all called for much greater dilution. As for the Smith plan to reform the ethics committee, it has at its core an astonishing indifference to Article One of the Constitution, allowing the Justice Department to investigate and act on even trivial violations of Congressional rules, not just violations of law, and adding outsiders to the ethics panel itself. But it also has some very constructive ideas, including adding real transparency to the committee. Some of those ideas ought to be addressed as soon as the House deals with the plan on the table now.

The bottom line, though, is this: The Capuano plan is real reform, and the Boehner objections are a smokescreen. The idea that having an independent arm of Congress to initiate investigations of ethics violations would be an obstacle to investigations by the FBI is particularly smoke-filled. At a time when Congress' ethics are under intense challenge and scrutiny, with Reps. John Doolittle (R-Calif.), Rick Renzi (R-Ariz.), William Jefferson (D-La.) and others yet to come, after Congress did zero to investigate their violations in the years preceding their criminal investigations, a vote against this plan is a vote to deny reform. Period.

Norman J. Ornstein is a resident scholar at AEI.