A Discussion of Congressional Legal Issues
From Gene Weingarten’s most recent Below the Beltway:
Me: Is this Tom Susman?
Tom: Yep.
Me: I cannot help but notice that you are identified as the “ethics chairman” of the American League of Lobbyists.
Tom: That’s correct.
Me: So, is that a no-show job? Like “etiquette chairman” of the World Wrestling Federation?
Tom: Or Lamaze instructor at a convent.
Stop it, you guys are killing me.
The House’s Special Task Force on Ethics Enforcement (or, more precisely, the Democratic members thereof) recommends the establishment of a six member board to govern the new Office of Congressional Ethics. Three of the board members would be designees of the Speaker and three would be designees of the Minority Leader. Although the Speaker and Minority Leader would be encouraged to agree on all of the board members and make joint appointments, in the absence of agreement the leaders could separately appoint their own designees.
The Task Force states that the board should be “comprised of individuals of distinction and high qualification.” It gives examples of the types of individuals to be considered as including “former Members of Congress, former Congressional staff, former state legislators [and] former judges.” Although the resolution it proposes would establish that selection and appointment of board members be “without regard to political affiliation,” it seems likely that the board would consist of three Democrats and three Republicans (the Task Force itself refers to “bipartisan balance” in the composition of the board). Thus, it would in essence duplicate the composition of the House Ethics Committee, which is evenly split between the two political parties.
The Task Force considered whether the OCE should be overseen by a single director rather than a board. It rejected this course, however, on the grounds that this would give too much power to a single individual. The Task Force asserted that in the past “special counsel was hired, either by the Standards Committee or some other Congressional entity, who was widely seen as having overstepped the appropriate extent of his or her authority.” It expressed concern about “investigations that stray from the original allegations of misconduct, and about individuals who use such unique positions of power to lay the foundation for their own future careers.”
I do not find this reasoning persuasive. In the first place, there is an inherent tension between the goal of ensuring OCE’s independence and that of ensuring that it does not overstep its authority. To the extent that having a board promotes the latter goal, it likely does so at the expense of the former. If the board is risk averse, it will hesitate to undertake any inquiries that might be controversial.
Second, the composition of the board would seem to create incentives similar to those that currently impact the House Ethics Committee itself. The types of people described by the Task Force as candidates for the board will probably have strong political affiliations (and ties to the Speaker or Minority Leader). Even if the members of the board are jointly appointed, they are going to have some degree of loyalty to the leader who designated them. If an inquiry is proposed for Democratic Representative A, there will be a natural tendency for the Democratic appointees on the board to resist, or to suggest that there should also be an investigation of Republican Representative B. This dynamic has often resulted in paralysis of the Ethics Committee, and could have the same impact on the OCE.
Third, there are significant differences between the incentives facing a “special counsel” to a congressional committee and the director of an office like the OCE. The former serves for a brief time (usually a matter of months), often while continuing to serve private clients from his or her law practice, and is responsible only to one or at most a handful of Members. The special counsel, therefore, may have an incentive to promote his or her private law practice (by making as big a splash as possible with the investigation) and less reason to consider the larger institutional interests of Congress.
By contrast, the director of the OCE would work full time for the House of Representatives, and would presumably serve for a period of years. If appointed jointly by the Speaker and the Minority Leader (or, preferably, by a resolution of the House itself), the director would not be loyal to a particular member but to the House as a whole. The director would less invested in the outcome of any particular matter (as compared to a special counsel), but would be more interested in building and preserving the reputation of the OCE as an effective and impartial enforcer of House rules.
An OCE run by a single individual would be more accountable and in all probability more vigorous than one run by a group of people who, however capable and well-intentioned, will be beset by the problem of internal disputes and disagreements which always occur when an enterprise is run by committee. A board (particularly one composed of high profile individuals) will also have more difficulty operating in a confidential manner than would a single director.
As described by my last post, the British have developed an effective system of ethics enforcement with a single individual serving as the Parliamentary Commissioner. One of the key features of the British system is the fact that the Parliamentary Commissioner is appointed by resolution of the House of Commons for a five-year non-renewable term, and similarly can only be removed by vote of the House itself. This gives the Commissioner considerable independence, and, since he can only serve a single term, less incentive to curry favor with the powers that be.
Of course, it is essential that such a position be filled by someone who is not only capable and honest, but who has a judicious temperament and a firm understanding of the proper role of his or her office. The British have been able to find well-suited persons, such as Sir Philip Mawer, to fill the role of Parliamentary Commissioner. Surely the House of Representatives could find a qualified and honorable individual, unconsumed by ambition, to serve as the director of the OCE.
As it takes up the question of how to structure an independent ethics enforcement office, the House of Representatives would do well to consider the experience of the British Parliament. In 1995, the House of Commons established the Parliamentary Commissioner for Standards, an independent official appointed by Parliament to handle ethics matters. Josh Chafetz has argued in a recent article that the Parliamentary Commissioner represents a promising model for congressional ethics reform.
The Parliamentary Commissioner’s principal duties are: (1) to maintain the “register of interests” that identifies certain significant financial interests (eg. paid employment, directorships, shareholdings, gifts, hospitality, land and property) of Members of Parliament and others which could potentially influence their parliamentary activities; (2) to provide confidential advice to MPs and others regarding the registration requirement; (3) to advise the Committee on Standards and Privileges (the British counterpart of the House Ethics Committee) on interpretation of the code of conduct; (4) to monitor the operation of the code of conduct and the register and to make any needed recommendations for improvement; and (5) to receive and, if appropriate, to investigate complaints from MPs or members of the public regarding failure to register interests, violations of the code of conduct or other inappropriate activity by MPs in their public life.
The last function is the most important. The Commissioner receives complaints filed by members of the public, but does not accept anonymous complaints or unsubstantiated allegations. If the Commissioner decides that the complaint lacks merit, he has the discretion to reject it without taking further action. (The Commissioner has also established procedures for dealing with frivolous or vexatious complaints).
If, on the other hand, the Commissioner is satisfied that the allegations have sufficient substance to justify a preliminary inquiry, he will ask the MP in question to respond. Following receipt of this response, the Commissioner may dismiss the complaint, reach a settlement with the MP (if the Commissioner finds that the infraction was minor or unintentional), or proceed to conduct a full investigation. If a full investigation is warranted, the Commissioner will ultimately report to the Committee on Standards and Privileges (the equivalent of the House Ethics Committee) with his findings and recommendations. The Committee may then conduct further inquiry, and will ultimately publish its own report along with the report received from the Commissioner.
As suggested by Josh Chafetz, the Parliamentary Commissioner model appears to be working successfully in