Note: See update below, the House GOP decided to repeal the rules change just moments before the new Congress convened.
With the new Congress set to begin in just hours, House Republicans have voted to change House rules in a way that critics say will seriously weaken ethics oversight of Members of Congress:
WASHINGTON — House Republicans, overriding their top leaders, voted on Monday to significantly curtail the power of an independent ethics office set up in 2008 in the aftermath of corruption scandals that sent three members of Congress to jail.
The move to effectively kill the Office of Congressional Ethics was not made public until late Monday, when Representative Robert W. Goodlatte, Republican of Virginia and chairman of the House Judiciary Committee, announced that the House Republican Conference had approved the change. There was no advance notice or debate on the measure.
The surprising vote came on the eve of the start of a new session of Congress, where emboldened Republicans are ready to push an ambitious agenda on everything from health care to infrastructure, issues that will be the subject of intense lobbying from corporate interests. The House Republicans’ move would take away both power and independence from an investigative body, and give lawmakers more control over internal inquiries.
It also came on the eve of a historic shift in power in Washington, where Republicans control both houses of Congress and where a wealthy businessman with myriad potential conflicts of interest is preparing to move into the White House.
Speaker Paul D. Ryan and Representative Kevin McCarthy of California, the majority leader, spoke out during the meeting to oppose the measure, aides said on Monday night. The full House is scheduled to vote on Tuesday on the rules, which would last for two years, until the next congressional elections.
In place of the office, Republicans would create a new Office of Congressional Complaint Review that would report to the House Ethics Committee, which has been accused of ignoring credible allegations of wrongdoing by lawmakers.
“Poor way to begin draining the swamp,” Tom Fitton, president of the conservative group Judicial Watch, said on Twitter. He added, “Swamp wins with help of @SpeakerRyan, @RepGoodlatte.”
Mr. Goodlatte defended the action in a statement on Monday evening, saying it would strengthen ethics oversight in the House while also giving lawmakers better protections against what some of them have called overzealous efforts by the Office of Congressional Ethics.
“The O.C.E. has a serious and important role in the House, and this amendment does nothing to impede their work,” the statement said in part.
But Representative Nancy Pelosi of California, the House minority leader, joined others who had worked to create the office in expressing outrage at the move and the secretive way it was orchestrated.
“Republicans claim they want to ‘drain the swamp,’ but the night before the new Congress gets sworn in, the House G.O.P. has eliminated the only independent ethics oversight of their actions,” Ms. Pelosi said in a statement on Monday night. “Evidently, ethics are the first casualty of the new Republican Congress.”
The Office of Congressional Ethics has been controversial since its creation and has faced intense criticism from many of its lawmaker targets — both Democrats and Republicans — as its investigations have consistently been more aggressive than those conducted by the House Ethics Committee.
The body was created after a string of serious ethical issues starting a decade ago, including bribery allegations against Representatives Duke Cunningham, Republican of California; William J. Jefferson, Democrat of Louisiana; and Bob Ney, Republican of Ohio. All three were ultimately convicted and served time in jail.
The Office of Congressional Ethics, which is overseen by a six-member outside board, does not have subpoena power. But it has its own staff of investigators who spend weeks conducting confidential interviews and collecting documents based on complaints they receive from the public, or news media reports, before issuing findings that detail any possible violation of federal rules or laws. The board then votes on whether to refer the matter to the full House Ethics Committee, which conducts its own review.
But the House Ethics Committee, even if it dismisses the potential ethics violation as unfounded, is required to release the Office of Congressional Ethics report detailing the alleged wrongdoing, creating a deterrent to such questionable behavior by lawmakers.
Under the new arrangement, the Office of Congressional Complaint Review could not take anonymous complaints, and all of its investigations would be overseen by the House Ethics Committee itself, which is made up of lawmakers who answer to their own party.
The Office of Congressional Complaint Review would also have special rules to “better safeguard the exercise of due process rights of both subject and witness,” Mr. Goodlatte said. The provision most likely reflects complaints by certain lawmakers that the ethics office’s staff investigations were at times too aggressive, an allegation that watchdog groups dismissed as evidence that lawmakers were just trying to protect themselves.
“O.C.E. is one of the outstanding ethics accomplishments of the House of Representatives, and it has played a critical role in seeing that the congressional ethics process is no longer viewed as merely a means to sweep problems under the rug,” said a statement from Citizens for Responsibility and Ethics in Washington, an ethics watchdog group that has filed many complaints with the Office of Congressional Ethics.
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Among the most prominent cases brought by the Office of Congressional Ethics since it was created was an investigation into Representative Maxine Waters, Democrat of California, who was accused of intervening with the Treasury Department to try to assist a struggling bank in which her husband owned stock.
Ms. Waters was ultimately cleared by the House Ethics Committee, but the committee criticized the actions of her grandson, who was then her chief of staff, and urged the House to consider broadening a ban on lawmakers’ hiring their relatives to include grandchildren.
By moving all of the authority to the House Ethics Committee, several ethics lawyers said, the House risks becoming far too protective of members accused of wrongdoing.
Ms. Waters was ultimately cleared by the House Ethics Committee, but the committee criticized the actions of her grandson, who was then her chief of staff, and urged the House to consider broadening a ban on lawmakers’ hiring their relatives to include grandchildren.
By moving all of the authority to the House Ethics Committee, several ethics lawyers said, the House risks becoming far too protective of members accused of wrongdoing.
Sarah Mimms at Buzzfeed has read through the proposed rule change and summarizes what it means:
- The OCE should no longer be independent. Instead, it will be under the House’s Committee on Ethics, which is run by members of Congress.
- The office will no longer be able to accept anonymous tips from whistleblowers.
- The ethics office must stop any investigation if the House ethics committee tells it to.
- The ethics office cannot investigate any tips on misconduct that took place before Jan. 3, 2011.
- The office can no longer talk about its findings — or even hire a spokesperson.
- The OCE cannot investigate any criminal cases or turn allegations of corruption over to law enforcement.
Each of these changes is problematic on their own because of the extent to which they tend to make it less likely that voters will be sufficiently informed of instances in which Members of Congress have engaged in activity that calls their ability to represent their constituents into question. The fact that the OCE will no longer be independent, for example, means that there will no longer be an independent agency with the ability to initiate investigations of Members of Congress that also provides members of the public and potential whistleblowers with a forum to which they can talk about potential ethical violations involving Members of Congress. Not being able to accept anonymous tips essentially guts the whistleblower protections that had been put in place to protect Congressional aides and others who may have information about wrongdoing by Members but don’t want their identities publicly revealed for fear of retribution. This will likely make it less likely that wrongdoing will come to light, or that it will be punished. The fact that the ethics office cannot continue an investigation if the Congressional Ethics Committee tells it to stop means that the office is more likely to become a tool for partisan retribution against rivals and attacks against enemies, especially given the fact that ethics investigations can often be expensive for Members if it means they have to acquire outside counsel to defend them. Additionally, while it isn’t necessarily unreasonable to place a time limit similar to statute of limitations on an investigation, barring investigations regarding allegations that are more than a mere five years old seems to me to be excessive, especially if one is speaking of a continuing pattern of misconduct, which has been common among many Members of Congres who end up under ethics investigation. Similarly, the fact that the office can no longer talk about its findings or even hire a spokesperson means that the public will be deprived of information it is arguably entitled to regarding improper conduct by Members. The bar on investigating anything that is being investigated by law enforcement is improper largely because it is often the case that conduct which is not criminal in nature still violates Congressional issues and ought to be handled by the appropriate office as soon as possible rather than forcing investigators to wait until any pending criminal investigation is over. Finally, the fact that the office can’t turn evidence that could give rise to criminal charges makes no sense at all. Anyone who has evidence that someone has committed a crime should be able to report it to the appropriate law enforcement agency, and this especially applies to the office charged with investigating Members of Congress for wrongdoing. In some cases, people who have evidence of criminal activity and fail to turn it over to law enforcement could potentially be charged as an accessory to the crime, by passing this rules change the House GOP Caucus is essentially ordering those who come upon evidence of criminal conduct by Members of Congress to suppress it, and that’s unconscionable.
Not surprisingly, this move by the House GOP is coming under sharp criticism, from both House GOP critics and supporters alike. House Democrats, for example, are calling the rules change “dishonest” and “frightening.” Kevin Drum notes that this is happening at the same time that we are just weeks aware from the swearing in of a new Republican President with ethics problems of his own, and seems to confirm that the Republicans in Congress will be unlikely hold Trump accountable for his own actions. On the right, there is similar criticism. The Washington Post’s Jennifer Rubin, for example, notes that a move like this calls into question the entire “drain the swamp” mantra that Republicans ran on in 2016 at both the Presidential and Congressional levels. Jazz Shaw at Hot Air, meanwhile, calls on the GOP Caucus to reconsider this move. Indeed, it is hard to find anyone outside Congress willing to the defend the move, although the Trump transition team certainly is trying. Trump’s campaign manager Kellyanne Conway, who will play a key role in the new White House, defended the action today in an appearance on Morning Joe, while Donald Trump himself seems to only be questioning the timing:
With all that Congress has to work on, do they really have to make the weakening of the Independent Ethics Watchdog, as unfair as it
— Donald J. Trump (@realDonaldTrump) January 3, 2017
……..may be, their number one act and priority. Focus on tax reform, healthcare and so many other things of far greater importance! #DTS
— Donald J. Trump (@realDonaldTrump) January 3, 2017
As Jazz notes in his post that I linked above, the actual vote in the House GOP Caucus on this rule change was 119-74, which would ordinarily be enough to defeat the change when it comes to the House Floor if one assumes, as expected, that the majority of House Democrats would oppose the move. Unfortunately, the change we’re talking about here is not likely to be voted on individually. Instead it will be voted on as part of the complete package of House Rules that are routinely approved at the start of each new session of Congress. It’s not likely that Republicans will unite to vote down the entire Rules package simply because of one rule, so the fact that the change could theoretically be defeated means very little. Absent a move at the last minute by House Leadership to pull this change from that package, this rule change will be approved and Congress will move forward with even fewer protections against unethical conduct than it had before.
Update: Shortly before the new House convened at Noon today, House Republicans pulled the rules change:
Following a public outcry, and criticism from President-elect Donald Trump, House Republicans reversed course Tuesday on drastic changes to the independent Office of Congressional Ethics. House Majority Leader Kevin McCarthy (R-Calif.) offered a motion to restore the current OCE rules, and that was accepted by the GOP conference.
It was supposed to be a jubilant day for the right — a day Republicans ushered in a new GOP-controlled Congress as they await the takeover of the White House by their party leader, Donald Trump.
Then came a self-inflicted public relations debacle that even Trump publicly questioned — and the whole day unraveled from there.
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The pressure and public outcry led House GOP leadership to call an emergency conference on Tuesday to consider their options and perhaps weigh changing course.
Previously an independent body, the new set-up would essentially declaw the office. It would bar OCE from considering anonymous tips against lawmakers and sharing investigative findings with other branches of government or the public, as the office currently does in the name of transparency. It would also apparently keep OCE from investigating criminal activity, the bulk of their work — instructing the office to “immediately” refer any hint of such actions to the lawmaker-controlled ethics panel rather than pursue themselves.
It’s an awkward way for Republicans to start the new Congress — and not merely because it gives the appearance that they don’t value oversight of their own actions. It also steps on their message of the week, which is one of unity and “hitting the ground running” in a new GOP-controlled Washington.
This avoids a debate that would have been embarrassing to the say that least on the first day of the new Congress.
