The Office of Congressional Ethics Leaves Its Barn and the Congressional Black Caucus Tries to Rein It In

While I was away on vacation, the new, quasi-independent Office of
Congressional Ethics (OCE) was in the news a lot.<br>
<br>
<b>Going Outside of Congress</b><br>
First, it did
something that made it appear more than the paper tiger <a href="http://www.cityethics.org/node/721">I called it a year ago</a>.
According to a <a href="http://www.nytimes.com/2010/06/03/opinion/03thu3.html&quot; target="”_blank”">New
York Times editorial</a> last week, when the OCE's investigation of
contributions to House Appropriations Committee members (especially
from those associated with PMA) and their effect on defense contracts
was <a href="http://ethics.house.gov/Media/PDF/PMA%20Final%20Report.pdf&quot; target="”_blank”">dismissed</a>
by the<a href="http://ethics.house.gov/"&gt; House Committee on Standards
of Official Conduct</a>, the OCE sent its report to
the Justice Department.<br>
<br>

Since the OCE was given no subpoena power, it was not even able to
interview many congressional representatives or their staff. Nor can
the OCE take any action against congressional representatives, no
matter how much information it does uncover. Sending its report to an
entity other than the House Ethics Committee is the only way it can do
anything but acquiesce in the serious limitations that accompany the House's
self-regulation of its members' conduct. This was a bold, unexpected move.<br>
<br>
<b>Confidentiality and Revenge</b><br>
But for every bold move by an ethics commission, there is sure to be a self-defensive move against it. The self-defensive move came one day after <a href="http://oce.house.gov/disclosures/OCE_PMA_statement_05-27-2010.pdf&quot; target="”_blank”">the
OCE's announcement</a> that it would be sending its report to the
Justice Department.<br>
<br>
The form of the response was a resolution (<a href="http://www.govtrack.us/congress/bill.xpd?bill=hr111-1416&quot; target="”_blank”">H.
Res. 1416</a>) introduced by <a href="http://fudge.house.gov/&quot; target="”_blank”">Rep.
Marcia Fudge (D-OH)</a> and co-sponsored by nineteen other members of
the <a href="http://www.thecongressionalblackcaucus.com/&quot; target="”_blank”">Congressional
Black Caucus</a>. This vengeful resolution marks a low point for the Black
Caucus.<br>
<br>
According to <a href="http://fudge.house.gov/index.cfm?sectionid=25&sectiontree=6,25&itemid=3…; target="”_blank”">Rep. Fudge's press release</a>, the resolution does the
following (the language in brackets is mine):<br>
<br>
•    Prohibits unwarranted and premature publication of
OCE's reports and findings that detail alleged allegations associated
with violations;<br>
•    Directs the OCE to amend its rules to clearly define
the standard of proof required to (1) undertake a preliminary review;
(2) commence a second-phase review of any matter; and (3) refer any
matter to the Committee on Standards of Official Conduct (the
Committee); <br>
•    Permits OCE's jurisdiction to be invoked only by a
sworn complaint from a citizen asserting personal knowledge of an
alleged violation [an unprecedented limitation on jurisdiction]; and<br>
•    Authorizes the Committee to dismiss a matter
referred by the OCE as frivolous or unfounded [note that the Black Caucus does not define "unfounded" even though it wants the standard of proof defined] and require the OCE to
seal records associated with cases that are dismissed by the Committee
as frivolous or unfounded.  [this puts the congressional committee in the driver's seat]<br>
<br>
This description hardly does justice to a resolution that does all it can to make
the congressional ethics process top secret, and to prevent
investigations from taking place. It's worth noting that these
representatives appear to prefer partisan attacks, leaks, rumors, and
innuendo to reports based on professional investigations by a
bipartisan panel consisting primarily of former representatives. No one
truly innocent would prefer to be investigated by blogs rather than by
a bipartisan panel.<br>
<br>
Because this is not about, as <a href="http://fudge.house.gov/index.cfm?sectionid=25&sectiontree=6,25&itemid=3…; target="”_blank”">the
Fudge press release</a> says, perfecting the process, making it free of
politics, and "avoiding trials in the court of public opinion." This is
about preventing the bad publicity that accompanies investigations like
those of eight members of the Black Caucus, including five who had
accepted private funding for a trip to St. Maarten in 2008, according
to <a href="http://www.nytimes.com/2010/06/02/us/politics/02ethics.html&quot; target="”_blank”">a
recent New York Times article</a>.<br>
<br>
Even if it were desirable, however, you can't keep conduct like the St.
Maarten trip secret, especially now. If you make it hard for such
conduct to be investigated, and if you make it hard for such
investigations to be made public, then the news media, including blogs,
will investigate and try elected officials.<br>
<br>
See <a href="http://www.cityethics.org/content/many-problems-ethics-proceeding-confi…; target="”_blank”">an earlier blog post</a> on ethics proceeding confidentiality.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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