Opposition to Independent Ethics Enforcement in Washington Will Echo Locally

Anonymous

Tue, 09/14/2010 - 04:24

Complaints/ Investigations/Hearings

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 <a href="http://www.nationaljournal.com/njonline/rulesofthegame.php" target="”_blank”">Rules
of the Game column for the National Journal yesterday</a> sums up what
often happens when a legislative body creates a truly effective ethics
body:<ul>

<h2>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.</h2></ul>

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 <a href="http://www.cityethics.org/content/ec-reports-legislator-who-resigned-hi…; target="”_blank”">my
blog post on this</a>). 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 <a href="http://www.cityethics.org/content/office-congressional-ethics-leaves-it…; target="”_blank”">my
blog post on this</a>). 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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Opposition to Independent Ethics Enforcement in Washington Will Echo Locally

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