Details are emerging regarding the long-awaited proposal of the House Ethics Reform Task Force, which was charged with making recommendations to the House regarding the establishment of an independent ethics office. The proposal (which evidently has not been approved by the Republican members) will recommend the establishment of an “Office of Congressional Ethics,” which would conduct preliminary reviews of ethical violations and report its findings to the House Ethics Committee. The proposal is drawing criticism on two grounds: (1) the OCE would not hear complaints from outside groups, but would only self-initiate investigations and (2) the OCE would not have the power to subpoena witnesses or compel the production of documents. Today I will discuss the first criticism.
The reasons for prohibiting the filing of outside complaints are somewhat hard to fathom. As a practical matter, the OCE will have to get information about potential violations from somewhere, and presumably it will not refuse to consider information brought to its attention by outside parties. Indeed, Common Cause is supporting the proposal on the theory that it will be able to approach OCE officials informally with complaints.
So what is the difference between an informal complaint process and a formal one? Perhaps there is a feeling that allowing formal complaints would require the OCE to provide some sort of formal response (ie, accept the complaint or dismiss it) and would generate an expectation that OCE would take action on those complaints that were not rejected. However, the OCE could be permitted to disregard complaints that, on their face, failed to allege a cognizable violation of the rules and/or lacked a substantial evidentiary basis.
A formal system, moreover, has some advantages over an informal one. The complainant can be required to satisfy standards of pleading, such as a requirement that the complaint allege facts sufficient to establish a violation and provide some evidentiary substantiation for those allegations. A formal complaint would enable the OCE to focus on whether the alleged facts, if proved, would violate an ethical rule and permit it to narrow the issues before commencing a preliminary investigation.
To further ensure that complaints are reliable, the privilege of filing could be limited to members of an “ethics bar” that OCE would establish. Complainants and counsel who file unsubstantiated allegations or otherwise fail to meet standards set by OCE could be suspended or disqualified from future filings.
On the other hand, if the OCE is not permitted to consider outside complaints, it is difficult to see how it can achieve the goal of strengthening public confidence in the ethics process. Critics will justifiably note that this sends a message will discourage witnesses from coming forward with information that might be damaging to a Member of Congress. If OCE only hears complaints from other Members of Congress, why should an ordinary witness, whether a congressional staffer, an executive official or a private citizen, feel that he or she will be taken seriously by OCE? This is the same fundamental problem that has plagued the House Ethics Committee for the past decade, and merely outsourcing the ethics function will not make the problem go away.
In short, the absence of a procedure for filing outside complaints would be a serious weakness in any proposal to establish an OCE. Unless OCE can consider such complaints or develop an alternative mechanism for bringing information forward from ordinary witnesses, it may be perceived as little more than a sham for continuing a discredited ethics system.