On Revising the Rules of the Committee on Standards of Official Conduct

Thank you for asking me to offer my assessment of the June 17, 1997 report of the Ethics Reform Task Force, which recommends revisions to the rules of the House and the rules of the Committee on Standards of Official Conduct.

Let me begin by saying that the bipartisan agreement reached by almost all of the members of your Task Force is itself a remarkable achievement. These are difficult times for Members to sit fairly and impartially in judgement of their colleagues. Increasingly, charges of ethical impropriety and criminal behavior have become the means by which we contest our political and ideological differences. As Mr. Goss, a member of your Task Force, has said, the ethics process is the weapon of choice for partisan politics. This tactic of demonizing and criminalizing one’s opponent, now so much a part of our political culture, extends well beyond the ethics process—from the abuse of the independent counsel statute to the increasing reliance on highly personal attack ads in political campaigns.

In this highly charged environment, the Committee on Standards of Official Conduct has done a much better job than anyone might have expected. Members of the Committee have worked hard to avoid partisan deadlock and reach decisions that are informed, fair and responsible. But it is obvious that they need help, mostly a change in attitude and behavior on the part of Members of Congress and groups outside the institution (a deescalation of the ethics arms race) but also some adjustments in the procedures under which they operate. I believe your Task Force has produced a credible set of recommendations to advance that latter objective.

The report of your Task Force, obviously a committee product that includes tradeoffs and compromises needed to garner broad-based support, constitutes a series of revisions in the current process, not a major overhaul. I suspect no member of the Task Force is entirely satisfied with its product; and those of us outside of Congress cannot fail to note that it falls short of our preferred alternatives. For my part, I am disappointed that the Task Force did not take the more ambitious step of recommending the use of private citizens to assist the Standards Committee by conducting preliminary reviews of ethical complaints. I believe a carefully crafted and limited role for outsiders could help the House deal more effectively with conflicts of interest, avoid delay, diminish partisan rancor, relieve time pressure on members of the Standards Committee and enhance the legitimacy of the ethics process with the public, without abdicating Congress’s constitutional responsibility to discipline its own Members. But I realize there was little support on your Task Force (and likely in the House) for such a momentous reform. It’s time will come.

Others will find fault with different aspects of the report. Some Members of Congress are worried that it doesn’t do enough to discourage or punish frivolous complaints and that it dangerously abandons a presumption of innocence by requiring a majority vote to dismiss a complaint. Others argue that it fails to deal effectively with potential partisan deadlocks. Some fear that the standard of evidence for complaints by outside groups is too high, others that it is too low.

To be sure, the altered procedures recommended by the Task Force are no bulwark against intense partisan division on the Standards Committee and in the full House. If we continue to conduct our politics by these other means, the proposed new rules will not produce the desired results. But all in all, I believe the report constitutes a reasonable balancing of interests and that most of the criticisms leveled against it are not telling. If the bipartisan effort that produced these recommendations can be replicated on the Standards Committee and in the House, the proposed rules and procedures have a reasonable chance of working.

The report of the Task Force should be evaluated by how well its recommendations appear to help the ethics process in the House meet its primary objectives. I would identify those objectives as follows. The ethics process should provide a reasonably open and effective means of receiving and considering serious charges of wrongdoing by Members of the House. The process should ensure a timely consideration of such charges. And it should be fair in reaching conclusions based upon the evidence. At the same time the process should discourage the filing of ethics charges for partisan purposes, encourage as much bipartisanship as possible in the handling of complaints, and enhance the legitimacy of the House with the public.

I believe you have crafted a set of rules changes that move the process some distance toward meeting those objectives. First, the report recommends changes in procedures that reinforce the bipartisan (and ultimately nonpartisan) management of the Standards Committee. This is accomplished through the appointment and conduct of a nonpartisan staff, an enhanced role for the ranking minority member in setting the agenda of the Committee, and the critical responsibility given jointly to the chairman and ranking member for determining what constitutes a complaint, conducting the initial fact-gathering, and recommending resolution of matters to the full Committee.

Second, the recommendations importantly reduce the burden that now weighs heavily on members of the Committee. Serving on the Committee is often a thankless task, and we ought to be grateful to those Members who are willing to sit fairly and impartially in judgement of their colleagues. But it often means some of the most talented Members of the House spend enormous amounts of time on matters that have little to do with their legislative goals and constituent interests. By shortening the maximum term on the Committee to four years (within a six-year period), assigning some of the investigative work to a pool of Members not on the Committee, delegating the initial screening of complaints to the chairman and ranking member, and encouraging a more timely resolution of cases, the recommendations in the report promise to lighten the load of Committee members and make it a bit easier to recruit able Members to serve.

Third, proposals to encourage if not ensure a timely resolution of cases is an important value in and of itself, quite apart from easing the burden on Committee members. The ethics process is strengthened by the deadlines for determining whether a charge constitutes a legitimate complaint and for disposing of a properly filed complaint. To be sure, a tie vote on the Committee would leave a complaint in abeyance—with sufficient support neither to dismiss the complaint nor to move it forward. On the other hand, the report also recommends steps that would make it easier to avoid those tie votes, most importantly by giving the chairman and ranking minority member the authority to move to an investigative stage without requiring the Committee to determine that the allegations “merit further inquiry” or to adopt a “Resolution of Preliminary Inquiry.”

Fourth, the report strikes a reasonable balance between providing access to the ethics process for Members and outside groups who have credible charges of ethical violations by a member of the House and discouraging the political abuse of that process. Outside groups are provided for the first time direct access to the ethics process, but their complaints must be based on a “personal knowledge” requirement not satisfied simply by submitting newspaper articles alleging violations. This modest and appropriately higher standard of evidence for outside groups not subject to disciplinary measures by the House can be avoided if a Member agrees to sponsor the filing of a complaint by an outside group. But the Member must take responsibility for that filing by certifying that the complainant is acting in good faith and that the matter described in the filing warrants the attention of the Committee. The report also properly recommends abolishing the three-Member refusal rule, which has been used disingenuously for direct filing of charges by outside groups. These strike me as imminently reasonable measures that will virtually guarantee that credible and serious charges are considered by the Committee. Other measures designed to discourage frivolous complaints include the initial screening of filings by the chairman and ranking minority member, raising the evidentiary standard to vote a Statement of Alleged Violation (SAV) from “reason to believe” to “substantial reason to believe” a violation has occurred, and including in the House rules the authority of the Standards Committee to recommend sanctions for frivolous filers.

Finally, the report recommends a number of constructive steps to reinforce the importance of confidentiality and due process for respondents.

For all of these reasons, I believe the report of the Ethics Task Force merits adoption by the full House. It will not radically overhaul the ethics process or take the major step of involving outsiders. But it can facilitate a more responsible, accountable and effective process, albeit one that will continue to rely on good faith efforts by Members to make it work as intended. It will be especially important for leaders of both parties to choose Members for the Standards Committee and the pool assisting the Committee who will serve in the fashion envisioned by the authors of this report as well as to exercise restraint on themselves and their party colleagues to avoid actions that would undermine the constructive steps that you have recommended.