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Preliminary thoughts on the House GOP Ethics Proposal (Updated)

          The House Republicans have come out with an alternative to creating an Office of Congressional Ethics (as proposed by the Democratic members of the Special Task Force on Ethics Enforcement).  Although I have not seen the actual GOP proposal, the Roll Call description suggests that it has some promising elements, although further refinement is needed.

At the outset, the proposal would focus on reforming the House Ethics Committee itself, as opposed to creating a new outside entity. If nothing else, this focus recognizes the fact that the ultimate constitutional responsibility for disciplining members lies within the House itself, and cannot be outsourced to another entity. Thus whatever advantages may be obtained by creating an independent ethics office, they do not obviate the need for a House Ethics Committee that enjoys the trust and confidence of the institution and the public.

The proposal would have the members of the Ethics Committee appointed jointly by the Speaker and the Minority Leader, and would have the chairmanship rotate between the parties without regard to which one is in the majority. This idea would be to reduce partisanship and thus the types of partisan stalemates that the committee has experienced in the past.

I think that this is a good idea, but it is important to recognize reducing partisanship on the committee will not necessarily enhance the committee’s zeal to enforce the ethics rules. On the contrary, it could be argued that because the committee members would have a mutual interest in not rocking the boat, the absence of partisanship actually works in the opposite direction. Therefore, it becomes all the more important that there be mechanisms to trigger action by the committee.

The GOP proposal also suggests adding four former members to the committee, with the idea that these individuals would be more disinterested in their decisionmaking. I am not sure that the benefit of this reform would outweigh the practical and perhaps constitutional objections to the idea.

The proposal also recommends that outside complaints be allowed for the first time since 1997. As I have argued before, allowing such complaints is critical to re-establishing the credibility of the ethics process.

Under the proposal, the outside complaints would be “funneled” to the Ethics Committee through the House Inspector General. Although it is not clear from the Roll Call article, presumably the IG would perform some screening function, ie, weeding out at least clearly frivolous complaints. The IG would thus be performing a function not unlike that of the Parliamentary Commissioner for Standards, which I have suggested in earlier posts provides a good model for ethics enforcement.

Delegating this function to the IG is an interesting idea. The IG is an officer selected by the House leadership for a term of the Congress, but is normally expected to continue in that position from Congress to Congress. The IG also operates under the policy direction and oversight of the Committee on House Administration. It is not clear, therefore, that the IG has the degree of independence that would be optimal for performing the sensitive function of reviewing complaints against Members of Congress. (This is not, I hasten to add, any comment on the current IG, whom I do not know but about whom I have heard only positive things). One also one wonders how compatible this function would be with the IG’s other duties, which mostly consist of conducting financial, efficiency and similar type audits.

My personal inclination would be to vest this function in a separate and independent officer of the House, who would be appointed by the House for a non-renewable fixed term (perhaps two Congresses) on the joint recommendation of the Speaker and Minority Leader. This would give him or her the requisite independence to perform the job. I also think that this officer needs to do more than simply review complaints, but should have the authority to perform preliminary inquiries, dismiss or settle minor matters, and make reports and recommendations to the Ethics Committee itself.

Finally, the GOP proposal apparently recommends that, in order to break partisan deadlocks on the Ethics Committee, “[a]ny complaint that remains unresolved after a 90-day period would be referred to the Justice Department for investigation.” I have an admittedly knee-jerk negative reaction to this aspect of the proposal. Not all ethics matters involve illegality; some are simply inappropriate for Justice Department referral. Even with regard to complaints that do involve, or arguably involve, illegality, however, it is not desirable from an institutional perspective for the House to rely on the executive branch to perform its constitutionally assigned function of disciplining its members

UPDATE:According to an informed source, I have leapt to conclusions with regard to the function of the House Inspector General under the House GOP ethics proposal. I assumed that the IG would perform some sort of screening function with regard to outside complaints. Actually, the proposal envisions the IG merely receiving the outside complaints and logging them in for tracking purposes.

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