Victory: House creates an independent Office of Congressional Ethics!
Late on Tuesday, March 11, 2008, with a vote of 229-182, the House of Representatives passed a monumentally important resolution to create an independent, bipartisan panel of non-lawmakers to help review and investigate possible ethics violations by House members. Common Cause commends Speaker Nancy Pelosi for her tireless work on this reform, and thanks its thousands of citizen activists for their phone calls and emails to Representatives.
Following is a summary of the bill and key issues, from the Office of the Majority Whip
H.RES. 895 – Establishing within the House of Representatives an Office of Congressional Ethics, and for other purposes
Establishing an independent Office of Congressional Ethics
H.Res. 895 provides for the creation of an Office of Congressional Ethics (OCE), as an independent office within the House. Through the creation of the OCE, the House will significantly increase the transparency and accountability of its ethics enforcement process through greater timely reporting by a body of individuals who are independent from the House.
• Independent office within the House.
• Composed of 6 Board members, jointly appointed by the Speaker and Minority Leader. (Speaker nominates three subject to concurrence of Minority Leader; Minority Leader nominates three subject to concurrence of Speaker.) Current Members of the House, federal employees, and lobbyists are not eligible.
• Term of 4 years, one reappointment possible. Removal only with approval of both the Speaker and Minority Leader acting jointly.
Self-initiated review. Member-filed complaints still go directly to the Ethics
Committee. Two-step review process – (1) preliminary review, (2) second-phase review.
• Preliminary reviews are initiated by 2 Board members (one nominated by the Speaker, one nominated by the Minority Leader) submitting written notice to all other board members. Board must notify both the person who is the subject of the review and the Ethics Committee at each step in process. Preliminary review phase is 30 calendar or 5 legislative days, whichever is longer. 3 Board members must vote affirmatively to move forward to second-phase review. Otherwise, the preliminary review is terminated and no publication is required.
• A second-phase review is 45 calendar or 5 legislative days, whichever is longer, with one extension of 14 calendar days possible. All matters subject to a second-phase review must be referred to Ethics Committee for its review.
• Referrals to Ethics Committee will be accompanied by two documents: (1) a Report, which recommends dismissal, further inquiry, or states that the Board vote was a tie, and (2) Findings of fact. Neither document shall contain conclusions regarding the validity of the allegations or the guilt or innocence of the person subject to the review – such matters are the sole purview of the Ethics Committee.
Committee has 45 calendar or 5 legislative days from date of referral to review the matter, whichever is longer. One extension of 45 calendar or 5 legislative days is available. On most matters, at the end of the time, the Ethics Committee must issue commentary on status, along with the Report and Findings of the Board.
• On matters both the Board and Ethics Committee agree should be dismissed, no publication is required. If the Ethics Committee defers its review of a matter at the request of an appropriate law enforcement or regulatory authority (e.g., Justice Dept.), an announcement of such deferral is required.
• If the Ethics Committee establishes an investigative subcommittee, only that fact is publicized. If no conclusion after one year, the Board’s Report is published. Board Findings are published at close of that Congress.
• If the Ethics Committee requests that the Board refer a matter prior to completion of its review, it is still subject to the time limits and reporting requirements set forth above.
Amendments to the Proposed Reforms to the Ethics Process
Initial Proposal – OCE board appointments must be jointly made, but after 90 days appointments are made separately by the Speaker and Minority Leader without need for approval.
The amendment will take a further step to ensure bi-partisanship on the OCE.
• All appointments must be joint appointments. No time limit.
• Speaker nominates three OCE members subject to concurrence of Minority Leader.
• Minority Leader nominates three OCE members subject to concurrence of Speaker.
Initial Proposal – A review is initiated at the request of two OCE board members. The two can be appointees of the same party leader.
This was the most frequently cited concern. Many Members felt that allowing the initiators to be people appointed by the same party leader did not sufficiently deter partisan-motivated witch hunts.
• The proposal will be amended so that reviews can be initiated only pursuant to a bi-partisan request -- one initiating member must have been nominated by the Speaker and the other by the Minority Leader.
Initial Proposal – The only way to terminate a review before it advances to the second phase is the affirmative vote of four OCE board members.
This amendment will prevent partisan inquiries by two “rogue” members of the OCE.
• The amendment would terminate a review unless at least three members of the OCE affirmatively vote to advance it. This effectively requires the original two, jointly appointed, bi-partisan members to convince at least one more jointly appointed member that more information is needed to make a thoughtful decision on an allegation.
Taken together, these three amendments make it impossible to initiate a partisan witch hunt … and impossible to use partisan stonewalling to thwart a reasonable review once it has begun. Members are protected, but so is the integrity of the process.
• Language will be clarified stating that House Members and staff are prohibited from inappropriately communicating with OCE board members or staff about a case that may be before the OCE.
• The language banning ex parte communication will be clarified to ensure that it applies to OCE staff as well as board members.
• OCE staff, as well as OCE members, will be subject to the three-year pledge to not seek federal elective office.
• Language will be clarified that OCE staff are subject to the same restrictions as Ethics Committee staff relative to non-partisanship, prohibition on political activity, etc.
• Members and staff of the OCE will be required to sign the same pledge of confidentiality as currently required for Ethics Committee staff.
• Members and staff of the OCE will be clearly prohibited from leaking information pursuant to the same limitations that apply to Ethics Committee Members and staff.
Common Cause, U.S. PIRG, Norm Ornstein of the American Enterprise Institute and Tom Mann of the Brookings Institution support this revised proposal. The endorsements by these nationally respected, independent, non-partisan validators will increase public trust in the Congress’ commitment to reform and our ability to police ourselves.