119 House Republicans Attempted to Eliminate the Independence of the Office of Congressional Ethics
Published: December 20, 2017
What is the House Ethics Committee?
The so called "discipline clause" of the U.S. Constitution allows each chamber of Congress to determine the rules under which it operates, punish Members for wrongdoing, and to expel a Member if deemed appropriate:
"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member."
However, the Constitution makes no provision for a mechanism of investigating misconduct or enforcing consistent punishments.
The need for such a mechanism led to the creation of the House Committee on Standards of Official Conduct in 1967.
The name was changed to the House Committee on Ethics in 2011. It is often simply referred to as the Ethics Committee.
The Rules of the House of Representatives authorize this committee to investigate potential violations of any law, rule, or regulation by a Member of the House and to make recommendations to the House for disciplinary action.
It can investigate potential ethics violations related to Members’ travel, acceptance of gifts, outside sources of income, and financial disclosures.
The Committee is always chaired by a member of the majority party and the Ranking Member is always a member of the minority party.
The Committee consists of 10 members and, unlike other committees in the House of Representatives where the majority party always holds more seats than the minority party, Ethics Committee membership is divided evenly between the parties in order to promote impartiality in its judgments.
However, it is important to note that this committee ultimately consists of politicians who may be influenced by political considerations when making decisions.
For example, an even division of seats between political parties does not ensure the Committee will investigate thoroughly or impose appropriate punishments in instances where both parties feel it is politically expedient to look the other way.
Thus, while the Committee on Ethics can and has punished political corruption in the past, the absence of condemnation by the Committee does not equate to absence of corruption.
What is the Office of Congressional Ethics?
In 2008, following a series of corruption scandals, the House of Representatives created the Office of Congressional Ethics (OCE) to investigate allegations of misconduct by its Members.
"For the purpose of assisting the House in carrying out its responsibilities under article I, section 5, clause 2 of the Constitution (commonly referred to as the “Discipline Clause”), there is established in the House an independent office to be known as the Office of Congressional Ethics....."
The OCE is intended to supplement the existing House Committee on Ethics. But, unlike the Committee, the OCE is overseen by a six-member board of individuals who do not serve as Members of Congress and are meant to be non-partisan and not subject to political pressures.
It was envisioned as an independent watchdog, with a staff of investigators who conduct reviews based on allegations of wrongdoing by Members of the House made by the public or in media reports.
And unlike the House Ethics Committee, the public is allowed to submit allegations of possible wrongdoing to the OCE.
Upon completion of the reviews, the OCE issues its findings on the matter and its opinion on whether any infraction may indeed have been committed.
Based on the findings, the six-member board then votes on whether to refer the matter to the House Ethics Committee so that it may conduct its own review.
Generally, the House Ethics Committee will, at some point, release the OCE’s report on the alleged wrongdoing, even if it decides not to take action against the Member in question.
The publication of its findings serve as a deterrent to any unethical behavior by Members of the House of Representatives.
It's important to note that the OCE does not have subpoena powers.
Nor does it have to capacity to act on its findings. It remains up to the House to determine whether to act on any evidence of wrongdoing the OCE may discover.
However, the OCE has successfully investigated several notable cases.
119 House Republicans Make a Move in the Dark
Emboldened by the election of Donald Trump to the presidency, on January 2, 2017 the House Republican Conference, without warning or public discussion, voted 119-to-74 on an amendment to eliminate the independence of the OCE from political influence.
The vote was taken in secret and, as such, there is way to know which Members supported the proposed amendment.
The amendment was attached to a House Resolution meant to set out the rules for the 115th Congress, and would have next been subject to possible changes when a new House is sworn in 2018.
The amendment was proposed by Republican Representative Robert W. Goodlatte of Virginia’s sixth Congressional District.
The plan intended to prevent the OCE from investigating allegations made anonymously, prevent the OCE from informing prosecutors of evidence of criminal conduct it may discover during an investigation without the approval of the House Ethics Committee, and subject the OCE to oversight by the Ethics Committee thereby allowing the politicians on the Committee to end any OCE investigation, at any time, for any or no reason.
The full House of Representatives was scheduled to vote on the resolution with the proposed amendment on Tuesday January 3, 2017.
Outcry and Reversal
The move by House Republicans resulted in a national outcry.
House Members’ offices were flooded with phone calls from angry constituents.
Members of the opposition Democratic party opposed the measures.
Republican President Trump, without condemning the spirit of the amendment, questioned its timeliness tweeting, “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 may be, their number one act and priority. Focus on tax reform, healthcare and so many other things of far greater importance!”
And Republican House Majority Leader Kevin McCarthy, like Trump, questioned the timing of the proposed measures.
So on January 3, 2017, less than 24 hours after the proposed changes were brought to the attention of the public, Republican Members of the House chose not proceed with the proposed changes and the resolution was adopted without the amendment.
The first act of 119 Republican Members of the 115th House of Representatives of the United States was to attempt to subvert the independent body tasked with investigating possible misdeeds these Members may have committed or may go on to commit.
In defending his failed proposal, Representative Goodlatte's office put out a press release which stated that the amendment “strengthens the existing Office of Congressional Ethics...." with no sense of shame or irony.
The press release also stated, "Feedback from Members and staff having gone through review by the OCE has been that those under investigation need increased protection of their due process rights, greater access to basic evidentiary standards, and a process that does not discriminate against them for invoking those rights. The amendment seeks to strengthen each of these needs while maintaining the basic core of OCE’s functions" [emphasis added].
Of course, this is obviously false because THE core function of the OCE is to serve as an an outside investigative body free from political interference.
There may well be procedural issues with the OCE which could be improved.
But this amendment did not seek to simply address procedural issues.
Rather, it would have turned the OCE into an appendage of the House Ethics Committee, potentially subjecting it to political interference.
And this would have rendered the OCE's entire existence almost meaningless.
This is all to say nothing of the fact that the vote in favor of the amendment was taken in secret.
Because of course politicians always take votes in secret when they're doing exactly what they say they're doing; everyone knows politicians are shy about seeking attention for their good deeds.
Obvious attempts by our elected representatives to disguise the true effects of their actions by playing word games and votes taken in secret to prevent democratic accountability deserve our scorn and derision.
Had it not been for the uproar from the public, these 119 Members of the House may well have succeeded to their effort to limit their own oversight.
This incident demonstrates the role the constituents can play in pressuring our elected officials to uphold appropriate ethical standards.