Opposition to Independent Ethics Enforcement in Washington Will Echo Locally

Forget the fascinating range of ethics programs at the local level. It is congressional ethics programs that get the national attention. And with all this attention, what Congress does, and fails to do, has a great effect not only on what happens at the local level, but also on the rhetoric employed there.

When Congress self-administered its own ethics, every council or county commission member could say that if self-regulation is good enough for Congress, it's good enough for them. Only legislative bodies, the rhetoric went, can oversee legislators.

When Congress recently set up the semi-independent Office of Congressional Ethics, and the OCE actually took its job seriously, this gave heart and ammunition to good government groups seeking the independent, transparent investigation of possible ethics violations. It's no accident that the last couple of years have been very active years in local government ethics reform, and that ethics self-regulation appears self-serving.

The headline in Eliza Newlin Carney's Rules of the Game column for the National Journal yesterday sums up what often happens when a legislative body creates a truly effective ethics body:

Clock Running Out For OCE: The Office Of Congressional Ethics May Not Have Enough Friends In Congress To Survive No Matter Who Wins This Fall.

Political lawyer Brian Svoboda is quoted asking valuable questions about the OCE:  "Are they doing what Congress meant them to do? Are they doing their job well? Are they doing it carefully?" This is the rhetoric that will likely be employed in the taking apart of the OCE.

But those really aren't the issues that are leading to the OCE's likely demise. The principal issue appears to be transparency. One representative who had a matter against him dismissed by the OCE attacked it for prematurely "punishing members in the press." Another representative said, "They have embarked on some investigations without merit and have done so publicly in a way that has hurt members who have done nothing wrong."

If it were really an issue of the "merit" of the charges, these same representatives would be greatly praising the OCE for publishing its report on Nathan Deal even after he resigned from Congress in order to prevent his ethics problems from becoming public (see my blog post on this). But they didn't have anything nice to say about that.

If these representatives really wanted good investigations with merit, they would demand that the OCE be given subpoena powers. But instead they're calling for the OCE to be stripped of powers, including the power to go public with its findings, even when, after investigating, they feel that the charges have merit.

Another thing that has turned many representatives against the OCE is its decision to send its report on one matter to the Justice Department, when the OCE was not able to sufficiently investigate the matter without subpoena power (see my blog post on this). It is common for ethics commissions to refer matters to criminal authorities, or to authorities that have the appropriate or necessary jurisdiction or powers. For example, when the board for which I act as administrator tried to investigate a matter involving a political action committee, and it refused to divulge information to the board, arguing that the board had no jurisdiction over it, the board filed a complaint with the State Elections Enforcement Commission, which does have jurisdiction over the PAC.

Finally, the OCE seems to have sealed its doom by recently deciding to investigate several representatives who collected campaign contributions from Wall Street donors on the eve of the House vote on financial services legislation. On the face of it, and certainly to most representatives, this investigation may seem to be going beyond the law. On the other hand, if you don't investigate situations such as this, which appear to be instances of pay-to-play, how will you know whether they are coincidences of timing or the real thing?

It is unusual for an ethics commission to announce investigations, at least before probable cause is found; most local legislators prevent this from happening. But it is common for investigations to become public anyway, because anyone interviewed is in a position to know that the investigation is occurring, and it is easy to leak this information without anyone finding out it was you. When you're in the public eye as much as Congress, the odds of a leak are very high. Therefore, it's probably better for everyone that the investigation be announced officially than leaked with partial or mis-information and a requirement that the OCE refuse to comment, even to set the record straight. This is true at the local level, as well.

Municipal ethics commissions should watch carefully what happens next year in Congress, and listen to what is said, because the same thing will likely be happening, and the same words spoken, in their community. And locally, it is less likely that there will be articulate good government groups making the case for independent ethics commissions with teeth. In many cases, the ethics commissions, and their staff, if any, will have to fill this role.

At the local level, the opposition to independence and transparency in ethics programs, along with calls of witch hunts, may be augmented by legislative immunity arguments, for a powerful one-two punch.

Robert Wechsler
Director of Research-Retired, City Ethics

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