The second criticism of the (nearly) proposed Office of Congressional Ethics is that it will lack the power to subpoena witnesses and documents. This criticism, it seems to me, is misplaced. As a practical matter, the OCE should have adequate power to conduct preliminary investigations of ethical violations without compulsory process.
Presumably much of the information that OCE will need to review in any preliminary investigation will be in the direct control of the Member of Congress who is suspected of wrongdoing. OCE should be able to obtain this information, in most cases, simply by request to the Member. If the Member refuses, OCE could draw negative inferences against the Member and report the refusal to the House Ethics Committee. This prospect (as well as the potential for adverse publicity if the refusal becomes public) will likely be sufficient to induce most Members to cooperate.
Another category of information will be in the hands of persons closely associated with the Member, such as former staffers, political allies and contributors, and lobbyists who deal with the Member frequently. Again, however, the OCE should be able to use its leverage with the Member to obtain the needed information in most cases.
Of course, there will be instances in which the OCE will be unable to obtain information because of the absence of subpoena power. In these situations OCE will have to decide whether the information in question is absolutely critical to its ability to conduct an appropriate preliminary investigation. If so, OCE will be able to request that the House Ethics Committee use its subpoena power to compel the production of the information in question. Requiring OCE to take this step should not be overly burdensome. On the other hand, requiring OCE to justify its requests for compulsory process will substantially reduce the risk of its becoming an out of control “independent counsel” type of entity. So long as OCE is able to maintain credibility as a serious and impartial ethics watchdog, it should be to get the information it needs without subpoena power.