[JPRT 110-1]
[From the U.S. Government Publishing Office]
110th Congress
1st Session COMMITTEE PRINT
110-1
_______________________________________________________________________
REPORT OF THE DEMOCRATIC MEMBERS OF THE SPECIAL TASK FORCE ON
ETHICS ENFORCEMENT
__________
One Hundred Tenth Congress
First Session
December 2007
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Special Task Force on Ethics
Available via World Wide Web:
http://www.gpoaccess.gov/congress/index.html
SPECIAL TASK FORCE ON ETHICS ENFORCEMENT
Rep. MICHAEL E. CAPUANO (D-MA), Chair
Rep. LAMAR S. SMITH (R-TX), Ranking Member
Rep. DAVID E. PRICE (D-NC)* Rep. DAVID L. CAMP (R-MI)
Rep. ROBERT C. ``BOBBY'' SCOTT (D- Rep. DAVID L. HOBSON (R-OH)
VA) Rep. TODD TIAHRT (R-KS)
Rep. BETTY L. McCOLLUM (D-MN)
*Rep. Price was appointed to the Task Force in July 2007 to replace
Rep. Martin T. Meehan, who resigned from Congress July 1, 2007.
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Formation
The Special Task Force on Ethics Enforcement was
established on January 31, 2007. Speaker of the House Nancy
Pelosi and House Republican Leader John Boehner appointed
Representatives Michael E. Capuano and Lamar S. Smith as Chair
and Ranking Member, respectively. Speaker Pelosi also appointed
the following Democratic Members of Congress to serve on the
Task Force: Martin T. Meehan, Robert C. ``Bobby'' Scott, and
Betty L. McCollum. Republican Leader Boehner appointed the
following Republican Members of Congress to serve on the Task
Force: David L. Camp, David L. Hobson, and Todd Tiahrt. Rep.
Meehan resigned from Congress in July 2007, and Rep. David E.
Price was appointed to fill the vacancy on the Task Force. None
currently serve on the House Committee on Standards of Official
Conduct (commonly known as the ``Ethics Committee''), though
some have served on this committee in the past.
A number of staff members greatly assisted the work of the
Task Force in the course of its duration: Christina Tsafoulias,
Legislative Assistant to Rep. Capuano; Paul Taylor, Chief
Republican Counsel to the House Judiciary Subcommittee on the
Constitution, Civil Rights, and Civil Liberties; Bernard Raimo,
Counsel to the Speaker; Ed Cassidy, Senior Advisor & Floor
Assistant to the Republican Leader; and Robert F. Weinhagen,
Jr., Senior Counsel in the Office of Legislative Counsel. In
addition, the following staff aided Members of the Task Force:
Jean Louise Beard, Chief of Staff, and Kate Roetzer,
Legislative Assistant to Rep. Price; Allison Havourd and Rob
Guido, Legislative Assistants to Rep. Camp; Christopher
Hickling, Legislative Director to Rep. Meehan; Ben Taylor,
Legislative Assistant to Rep. Hobson; Carla Murrell-Hargrove,
Staff Assistant, and Rashage Green, Legislative Assistant to
Rep. Scott; Jeff Kahrs, Chief of Staff to Rep. Tiahrt; and
Emily Lawrence, Legislative Director to Rep. McCollum. The Task
Force would also like to thank the offices of the
Parliamentarian and General Counsel, the Committee on Standards
of Official Conduct, and the Congressional Research Service for
their assistance.
Executive Summary
Over the past eleven months, the Task Force has considered
the questions of whether to create an independent ethics
enforcement entity within the House of Representatives and how
best to increase transparency and accountability within the
ethics process.
As a result of months of study and discussion among Task
Force members and stakeholders, the Task Force proposes the
creation of an Office of Congressional Ethics as an independent
office within the House. The office will be composed of six
board members, jointly appointed by the Speaker and Minority
Leader, and a staff. It will be the responsibility of the board
to review information on allegations of misconduct by Members,
officers, and employees of the House and make recommendations
to the Committee on Standards of Official Conduct for the
Committee's official consideration and action.
Two board members may initiate a review by notifying all
other board members in writing. The board will then have 30
calendar days to consider the matter in a preliminary phase and
may vote to either terminate the review or progress to a
second-phase review. Once in the second phase, the board has 45
calendar days (with a possible one-time extension of 14 days)
to complete consideration of the matter and refer it to the
Standards Committee with a recommendation for dismissal,
further review, or as unresolved due to a tie vote. The board's
referral may not contain any conclusions regarding the validity
of the allegations upon which it is based or the guilt or
innocence of the individual who is the subject of the review.
All matters that enter into a second-phase review must be
referred to the Standards Committee.
Once the Standards Committee receives a matter through this
process, it will have 45 calendar days (with one possible
extension of the same duration) to deliberate and decide on a
course of action. All final authority and responsibility to
either dismiss a case or empanel an investigative subcommittee
continues to lie with the Standards Committee. In most cases,
the Committee will publicly announce its disposition on the
matter at the end of the applicable time period, along with a
report and findings from the board. However, no public
announcements are required when neither the board nor the
Ethics Committee has found substantial wrongdoing.
Through the implementation of these recommendations, the
Task Force expects to significantly increase transparency in
the process through greater reporting on a timely basis and to
provide for an independent element of consideration by
individuals who are not current Members of the House of
Representatives.
Purpose
During the 109th Congress, several Members were involved in
controversies ranging from improper use of their office to
inappropriate contact with participants in the House Page
Program. In response to these well-documented incidents, one of
the first actions of the 110th Congress was to pass changes to
the U.S. House of Representatives Code of Official Conduct and
other Rules of the House. In follow up to strengthening the
rules governing the conduct of Members, Speaker Pelosi and
Republican Leader Boehner announced that they would establish a
Task Force to study enforcement of ethics rules. The Special
Task Force on Ethics Enforcement was charged with determining
whether the House should establish an independent ethics entity
to serve as part of the ethics enforcement process. Currently,
the Standards Committee is the sole ethics entity within the
House, overseeing the receipt of all complaints, inquiries,
investigations, and adjudication.
Many Members of Congress and constitutional scholars have
expressed concerns regarding the constitutionality of
establishing an independent entity to supplement the existing
House ethics process. The two commonly cited passages are as
follows:
Article I, section 5, clause 2 of the United
States Constitution: ``Each House may determine the Rules of
its Proceedings, punish its Members for disorderly Behaviour,
and, with the Concurrence of two thirds, expel a Member.''
Article I, section 6, clause 1 of the United
States Constitution: ``Senators and Representatives . . . for
any Speech or Debate in either House, . . . shall not be
questioned in any other place.''
Task Force members were cognizant of these issues as they
considered policy recommendations, and were careful to ensure
that any proposal strictly adhere to constitutional precepts.
Background
Ethics reform in the House has been an ongoing process
since the creation of the Committee on Standards of Official
Conduct in 1967. On average, the House has adopted significant
ethics reforms, usually at the recommendation of a special task
force, once a decade. Such reforms occurred after significant
study of the ethics process, generally coupled with heightened
public concern due to contemporaneous scandal.
In 1977, the House adopted changes to the ethics process as
proposed by the House Commission on Administrative Review. This
Commission was led by Representatives David R. Obey (D-WI) and
William E. Frenzel (R-MN), and charged with reviewing the
administrative structure of the House. A number of reforms were
implemented as a result of this initiative, including increased
financial disclosure obligations for Members, limits on
Members' outside earned income, and the abolition of
``unofficial'' office accounts which Members often used to
supplement official monies.\1\
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\1\ Financial Ethics (H. Doc. No. 95-73).
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In 1989, the House Bipartisan Leadership Task Force on
Ethics convened, co-chaired by Representatives Vic Fazio (D-CA)
and Lynn Martin (R-IL). This Task Force's work culminated in
the passage of the Ethics Reform Act of 1989, which banned
honoraria, instituted a one-year post-employment waiting period
before lobbying, tightened gift rules, established the Office
of Advice and Education, and provided for bifurcation between
the investigative and adjudicatory duties of the Standards
Committee.\2\
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\2\ Ethics Reform Act of 1989 (Public Law No. 101-194).
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Finally, in 1997, the House established the Ethics Reform
Task Force. This group was co-chaired by Representatives Robert
L. Livingston (R-LA) and Benjamin L. Cardin (D-MD). A number of
recommendations were implemented, including the first creation
of a supplemental pool of Members from which to draw for
investigative subcommittees, restrictions on the filing of
complaints, limits to Members' service on the Standards
Committee, and the adoption of a rule providing for
professional, nonpartisan Committee staff.\3\
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\3\ H. Res. 168--To implement the recommendations of the bipartisan
House Ethics Reform Task Force (105th Congress).
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In light of the fact that Congress worked for 178 years
without formal rules on ethics or ethics procedures, the Task
Force believes that Congress has come a long way in the 40
years since the establishment of the Standards Committee in
1967. Members of the Task Force also recognize that such
matters are constantly in need of review and updating.
Process
The Special Task Force on Ethics Enforcement met with
current and former Members of Congress, advocacy and reform
groups, scholars, current and former Standards Committee staff,
and other stakeholders. The purpose of the exchanges was to
familiarize Task Force members with varying viewpoints on the
ethics process in the House of Representatives, as well as with
proposals for reform of the current system. Throughout this
process, the Task Force focused solely on the central question
of whether to create an independent ethics enforcement entity.
Numerous preliminary meetings took place in executive session
in order to facilitate frank discussion among Task Force
members and those asked to share their views.
Members met in executive session on February 9, 2007 and
March 1, 2007 to discuss matters relating to process,
scheduling, and research.
Members met in executive session on March 6, 2007, with Ken
Kellner, Senior Counsel to the House Committee on Standards of
Official Conduct.
Members met in executive session on March 8, 2007, with
Thomas Mann, Senior Fellow at the Brookings Institution and
Norman Ornstein, Resident Scholar at the American Enterprise
Institute.
Members met in executive session on March 13, 2007, with
Meredith McGehee, Policy Director for the Campaign Legal Center
and Fred Wertheimer, President and CEO of Democracy 21. Both
represent a larger coalition that supports the establishment of
an Office of Public Integrity.
Members met in executive session on March 15, 2007, with
former Representatives Robert Livingston, who served as co-
chair of the 1997 House Ethics Task Force, and Louis Stokes, a
former Chairman of the Committee on Standards of Official
Conduct.
Members met in executive session on March 20, 2007 with Tom
Fitton, President of Judicial Watch and Melanie Sloan,
Executive Director of Citizens for Responsibility and Ethics in
Washington (CREW).
Members met in executive session on March 22, 2007, with
Senator Ben Cardin, Co-Chair of the 1997 House Ethics Task
Force, and Don Wolfensberger, Director of the Congress Project
at the Woodrow Wilson International Center for Scholars.
Members met in executive session on March 27, 2007, with
Sarah Dufendach, Chief of Legislative Affairs for Common Cause,
Gary Kalman, Democracy Advocate for U.S. PIRG, and Lloyd
Leonard, Senior Director of Advocacy for the League of Women
Voters.
Members met in executive session on March 29, 2007 with
Patricia Harned, President of the Ethics Resource Center,
Bradley Smith, former Federal Elections Commission Chairman,
and Judge Anthony Wilhoit, Executive Director of the Kentucky
Legislative Ethics Commission.
Members met in executive session on April 17, 2007 with Rob
Walker, Chief Counsel and Staff Director of the Senate Select
Committee on Ethics and former Chief Counsel and Staff Director
of the House Committee on Standards of Official Conduct.
The Special Task Force on Ethics Enforcement held a public
hearing on Thursday, April 19, 2007. The following individuals
appeared as witnesses to offer testimony: Tom Fitton, President
of Judicial Watch; Meredith McGehee, Policy Director for the
Campaign Legal Center; Fred Wertheimer, President and CEO of
Democracy 21; and Don Wolfensberger, Director of the Congress
Project at the Woodrow Wilson International Center for
Scholars. Mr. Fitton, Ms. McGehee, and Mr. Wertheimer all
testified in support of the general concept of an independent
ethics enforcement entity though some proposal details
differed. Mr. Wolfensberger offered his perspective on this
process based on years of service as an employee of the U.S.
House of Representatives, and stated his opposition to the
creation of an independent entity. Task Force members had the
opportunity to pose follow-up questions to witnesses at the
conclusion of their testimony. The Task Force hearing was open
to all interested parties and a full transcript of the hearing
was produced. The transcript is available on Rep. Capuano's
website at http://www.house.gov/capuano/.
Members met again in executive session on April 24, 2007,
to begin substantive discussion of Task Force proposals and
recommendations.
Members continued to meet in executive session to expand on
those internal discussions and deliberate matters further on
the following dates: April 26, 2007; May 1, 2007; May 2, 2007;
May 3, 2007; May 10, 2007; May 22, 2007; June 6, 2007; June 7,
2007; September 27, 2007; October 4, 2007; October 10, 2007;
October 30, 2007; November 1, 2007; November 8, 2007; November
14, 2007; November 15, 2007; December 4, 2007; and December 19,
2007.
In addition, the Chair and Ranking Member of the Task Force
held six meetings early in the process with many of those named
above, as well as with Craig Holman, Legislative Representative
for Public Citizen; Jack Maskell, Legislative Attorney for the
Congressional Research Service; and R. Eric Petersen, Analyst
in American National Government for the Congressional Research
Service.
In June 2007, the Task Force developed a proposal for an
independent entity that would accept submissions from the
general public regarding alleged ethics violations and, after
an initial inquiry, refer them (with recommendations) to the
Committee on Standards of Official Conduct for final action.
This proposal was crafted based on a number of discussions of
historical concerns with the ethics process in the House, and
incorporated many suggestions given to the Task Force over the
course of its meetings. Two main elements of the initial plan
became problematic due to opposing concerns of some Members of
Congress and ethics reform groups: the acceptance of
``outside'' submissions from the general public, and the
requirement that any group filing a submission (or
significantly aiding in the filing of a submission) disclose
financial donors over a certain threshold. In deference to the
concerns of both Members and various ethics reform groups, the
Task Force decided to withhold its proposal at that time and to
develop a new proposal. Regardless, the Task Force has always
maintained its focus on accountability and transparency in the
ethics process.
Recommendations
The following section contains the Special Task Force on
Ethics Enforcement's recommendations based on months of study,
meetings, and discussion among members. The entity described
below is created within the House of Representatives, to be
established through a House resolution. The proposed resolution
is included as Attachment A in this report. The Task Force
recommends that an Office of Congressional Ethics (OCE)
supplement the House ethics process by providing an independent
review of alleged violations of standards of conduct by
Members, officers, and employees--thereby reassuring Members of
Congress and the general public that a clear ethics system is
in place and will respond to possible ethics violations. Among
the goals the Task Force hopes to accomplish are to introduce
an independent review element by non-Members and significantly
increase transparency of the process. The formation, procedure,
and ancillary details of the OCE are described below.
General overview
The Task Force recommends that an entity named the Office
of Congressional Ethics be established as an independent office
within the House of Representatives to provide a review of
alleged ethics violations. The OCE will be composed of six
board members. The board will then appoint a staff to carry out
the daily work of the office.
The new Office of Congressional Ethics will act as an
origination point for independent review of possible violations
of standards of conduct, but will not prevent the Standards
Committee from accepting complaints filed by Members. Any two
OCE board members will be able to initiate a preliminary review
of any matter by the board in order to better assess its
validity. The board will then vote to either terminate the
preliminary review or proceed to a second-phase review of the
matter. By the end of a mandated time period, the OCE must
refer all matters under second-phase review to the House
Committee on Standards of Official Conduct--with a
recommendation for dismissal, for further inquiry, or as
unresolved due to a tie vote--for official Committee action.
The Standards Committee will then consider the referral
according to current Committee rules, but, for the first time
in history, will be required to make a public announcement of
its disposition for most referrals within a specified time
period. The Standards Committee may dismiss or further
investigate a matter as it sees fit once it has received the
referral from the OCE.
This new, independent office will open up the ethics
process by allowing the OCE to self-initiate reviews of alleged
violations, providing an avenue for both preliminary and
second-phase reviews, and triggering a procedure by which
official public comment is required within a specified time
frame.
Entity
The Office of Congressional Ethics is to be established by
resolution as an independent office of the House of
Representatives consisting of board members and a staff. Board
members are to be appointed jointly by the Speaker and Minority
Leader to ensure bipartisan balance. Vacancies on the board
will be filled for the remainder of the unexpired term by the
process delineated below. Once established, the board shall
appoint a nonpartisan, professional staff to carry out the
daily duties of the OCE. The staff members are to be employees
of the House of Representatives and subject to all applicable
rules and standards for such employees.
During Task Force meetings, some ethics reform groups
suggested that the Task Force create an ``outside'' entity
which would be separate from the House. Its staff would not be
considered House employees, nor would its director (or board
members) or rules operate under House control. Some proposals
included provisions to allow this outside entity to receive
complaints, dismiss complaints as appropriate, conduct its own
investigations, and recommend sanctions of Members. The Task
Force recognized that the establishment of this type of entity
would require a vote of both the House and Senate, and the
signature of the President, and could also run afoul of
constitutional responsibilities. Many outside groups and
scholars with whom the Task Force consulted agreed with this
assessment and proposed models for an entity within the House
that would act as an independent office much like the Office of
the Inspector General or the Office of the Chief Administrative
Officer. The Task Force approved of such an approach for an
office within the Legislative Branch as the most feasible.
The OCE will be established by a resolution which must be
readopted at the start of each new Congress to remain in
effect. Given that the Rules of the House, which the resolution
in part amends, are traditionally carried over from one
Congress to the next, the Task Force anticipates that the
continued existence and effectiveness of the OCE will be given
due respect and consideration.
Board
The board members of the OCE will be charged with
initiating reviews, assessing all matters under review, and
referring second-phase reviews to the Standards Committee for
action. They must make a decision whether to recommend (in the
case of a second-phase review) that the Committee dismiss a
matter or that the matter requires further inquiry. The board
will be able to independently initiate ethics reviews and, for
this reason, must be comprised of individuals of distinction
and high qualification. As the OCE is to be an independent
entity within the House, it is clear that no current Members of
Congress may serve on its board. Rather, OCE board members
shall be private citizens with extensive experience with one or
more of the following fields: legislative, judicial,
regulatory, professional ethics, business, legal, and academic.
This list is not exhaustive and is meant to provide examples of
the background and qualities the Speaker of the House and
Minority Leader may take into account when considering
individuals to appoint to the board. In addition, Task Force
members believe it would be appropriate to consider former
Members of Congress, former Congressional staff, former state
legislators, former judges, etc. No current registered
lobbyists may serve on the board. Former Members of Congress to
be considered for the board must be out of office for at least
one year prior to their appointment.
It is the intention of the Task Force that the OCE should
run as smoothly as possible following its establishment within
the House. Board members will each serve presumptive four year
terms and may be reappointed for one additional term. The
Speaker and Minority Leader will jointly appoint board members
to ensure bipartisanship in the operation of the OCE. If, after
90 days, a board position has not been filled by joint
appointment, then the position will be filled by either the
Speaker or Minority Leader, as appropriate, acting alone. The
Task Force encourages the two leaders to work cooperatively to
appoint a full board; however, in the event that they are
unable to agree on a full complement, the Task Force believes
it is essential that the OCE proceed to conduct its business in
a timely manner and should therefore have a system in place to
account for such a possibility. In a practical sense, the
Speaker and Minority Leader will most likely appoint two board
members at a time, to guarantee that any slots remaining open
after the 90-day period (mentioned above) exist in even numbers
for potential partition along majority-minority lines.
To ensure continuity of OCE functions, the terms will be
staggered so that the Speaker and Minority Leader will appoint
or re-appoint at least two board members at the start of a new
Congress. At the establishment of the OCE, the Speaker and
Minority Leader will appoint four board members to serve
through the remainder of the 110th Congress and two board
members presumed to serve through the 111th Congress.
Accordingly, at the start of the 111th Congress, the leaders
must make four new board appointments through the duration of
the 112th Congress.
OCE board members shall be paid for their service on a per
diem basis at a rate equal to the daily equivalent of the
minimum rate of basic pay payable for GS-15 of the General
Schedule. As of December 26, 2006, this rate equaled $93,063
per year. Board members shall also be reimbursed for reasonable
and customary expenses associated with travel, lodging, and
meals necessary to carry out their official duties. To provide
for full participation, however, the Task Force anticipates
that the board may, when necessary and appropriate, and
pursuant to its rules, conduct meetings via telephone
conference call. The board will draw up a code of conduct to
which its members must adhere that addresses conflict of
interest and other concerns. The Task Force expects that board
members will be professional and responsible men and women who,
though working part-time on a per diem basis, will account for
their duties in a conscientious manner. Board members shall
only be paid for days in which substantive OCE work is done. At
no time shall board members engage in ex parte communications
with any Member, officer, or employee of the House who is the
subject of a review by the OCE, or any other interested party.
In order to ensure that the OCE is as protected as possible
from politics and political campaigns, no board members shall
be allowed to seek federal office and each must agree not to do
so within three years of service. The Task Force looks
unfavorably on any individual who would capitalize on a
position with the OCE for personal political gain.
Removal of board members for cause at any point prior to
the completion of their appointment will require the agreement
of both the Speaker and Minority Leader to ensure that such
action is rare and taken only when necessary.
The Task Force would like to address one point that
discussion with ethics reform groups yielded relative to the
OCE board: the suggestion that a new ethics entity be created
with its own professional staff and be overseen by one director
rather than a board. It was argued that such an arrangement
would provide for greater accountability within the entity and
of the entity to the House.
This concept proved dubious for a number of reasons. The
primary concern is the amount of power vested in one individual
to oversee the process. While such a Director would no doubt be
vetted by both parties and, by necessity, approved by both
parties' leadership, the distinct potential exists for an
individual in this position to overreach his or her authority.
The Task Force encountered instances in the history of the
ethics process where, for example, 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. Concerns were
raised 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. The Task Force does not approve of the use of
the ethics process for partisan or personal gain and believes
the amount of power given to a sole director of the entity
would pose significant potential for abuse.
In addition, a board composed of an equal number of members
appointed jointly encourages bipartisan cooperation and reduces
concerns of partisan prosecution or protection. Each party must
take seriously its responsibility to act conscientiously with
respect to the appointment and comity of board members.
Staff
The staff of the OCE will be hired and overseen by OCE
board members, and will be full-time employees of the House of
Representatives.
Staff members shall be hired by the board for the duration
of a Congress and may be retained by a vote of the OCE board. A
majority of the board (i.e. four members) must vote
affirmatively to hire staff and, in such a case where it
becomes necessary, to terminate staff prior to the end of a
Congress.
It is essential that the Office of Congressional Ethics
remain nonpartisan in design and function. All staff must be
professional and conduct themselves in a strictly nonpartisan
manner. Consequently, the Task Force recommends that
restrictions similar to those placed on the political and
outside activities of Standards Committee staff be implemented
for OCE staff as well. These include requiring that no staff
``engage in any partisan political activity directly affecting
any congressional or presidential election'' and that no staff
``accept public speaking engagements or write for publication
on any subject that is in any way related to his or her
employment or duties.'' \4\
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\4\ See Standards Committee Rule 6(d) and (e).
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Prospective consideration
Reviews undertaken by the OCE may only pertain to acts
alleged to have occurred on or after the date of adoption of
the resolution. The Task Force wishes to allow for a smooth
establishment of the OCE in which it will not be overburdened
by a backlog of matters from previous Congresses. The OCE is
intended to supplement and open up the ethics process in the
House by moving forward. The customary Standards Committee
process will remain available to accept complaints--according
to its existing rules as adopted on February 16th, 2007--for
any conduct taking place in any of the three preceding
Congresses. The Standards Committee shall retain such authority
as granted under House rule XI.
In order to allow adequate time for appointments, hiring of
staff, office placement, and other such matters, the OCE is
given 120 days from the date of adoption of the resolution
before it is expected to commence any review.
Authority and duties of the OCE
As the OCE is designed to enhance and supplement the House
ethics process by allowing for independent initial
consideration of possible ethics violations, it will exist to
initiate and conduct reviews, gather information, and advise
the Standards Committee as to board members' recommendations
regarding alleged violations. Any final action to dismiss or
establish an investigative subcommittee to further examine
alleged violations must be taken by the Standards Committee
itself, pursuant to its Committee rules.
The staff and board of the OCE are empowered to gather
information regarding potential violations, as stated above.
The purpose of this review of each allegation is to help board
members decide which matters to refer, and how best to refer
them, to the Standards Committee. Through fact-gathering, the
board and staff should be able to establish which allegations
lack merit or are de minimis and thus do not necessitate
second-phase review by the OCE or referral to the Committee for
consideration. The Task Force envisions certain circumstances
under which the board may seek to interview individuals
believed to have further information regarding an alleged
violation and ask to see documents presumed to be connected to
the case. However, should the board feel it has not been able
to gather accurate information due to lack of cooperation with
its initial inquiry or unavailability of requested information,
it shall state so in its referral of a given matter to the
Standards Committee. The Committee is encouraged to take such
factors into consideration during deliberations.
At no time shall any board member or staff member of the
OCE comment publicly on any matter within its jurisdiction,
unless requested to do so by the Standards Committee in order
to participate in a public proceeding of that Committee. To
ensure confidentiality and responsibility in the opening steps
of the ethics process, the OCE will conduct all its proceedings
and deliberations in executive session.
The Task Force also recommends that the OCE produce a
yearly statistical report detailing, without name or subject
attribution, the work of the office. The report should give the
public an understanding as to how many matters were reviewed
both in the preliminary and second-phase stages, along with the
number of meetings of the board and other related activities.
The above section describes the authority and duties
delegated to the OCE at this time. Current rules require
Members and certain House staff to file financial disclosure
forms and travel reports with the Office of the Clerk. The
Clerk also receives Lobbying Disclosure Act filings. In the
discourse of ethics reform, it was suggested to the Task Force
that the independent entity be responsible for overseeing and
receiving such filings as part of its mandate. It is, however,
the desire of the Task Force that the entity be initially
charged only with the responsibilities outlined in its
recommendations. The creation of a new element within the
system will require certain adjustments and a period of time to
become fully operational. The entity should not be overloaded
at its implementation. This speaks to one reason why the Task
Force later recommends a continuing review of the ethics
process while such changes are realized.
Review process
The Task Force feels strongly that part of any reform to
the ethics process must include a more transparent system that
contains recognizable and predictable timeframes, along with an
independent review of alleged ethics violations by individuals
who are not Members of Congress. The process detailed below
adheres to strict timelines and guarantees public comment by
the Standards Committee in most cases once a second-phase
review is initiated. The public, as well as Members of
Congress, have a right to know that the process is working and
that pressing matters are being reviewed by the OCE and
Standards Committee. It is with this goal in mind that the Task
Force lays out the following review process for the OCE.
Once two board members of the OCE jointly initiate a
preliminary review by notifying all other board members in
writing, board members shall have 30 calendar days or 5
legislative days, whichever is later, to conduct the
preliminary review. This phase is intended to provide an
opportunity to explore any alleged ethics violations in order
to establish whether further review is merited. Within 7
business days of the start of a preliminary review, the OCE
must transmit notification to both the subject of the review
and the Standards Committee, along with a statement of the
nature of the review. The names of the board members initiating
the preliminary review shall never be made public.
By the close of the preliminary review phase, the board
must vote on whether to terminate the review or commence a
second-phase review of the matter, though such a vote may occur
at any point in the preliminary phase. The OCE must notify both
the subject of the review and the Standards Committee of the
vote's result, but not the names of board members indicating
which member voted a particular way. A preliminary review may
only be terminated by an affirmative vote of four or more board
members. If the review is terminated, all OCE inquiries into
the matter shall cease and it is considered closed. The OCE is
not required to transmit any further information regarding a
terminated matter to the Standards Committee; however, the
board may vote at its discretion to transmit any information it
sees fit.
If the board does not terminate a preliminary review, then
the OCE will proceed to a second-phase review of the matter.
During the second phase, the board will have 45 calendar days
or 5 legislative days, whichever is later, to gather
information, obtain witness testimony, examine documents, and
generally probe the alleged violation. The board may vote to
grant a one-time extension of 14 calendar days in the second-
phase review. At the close of the second-phase review process,
the board of the OCE must refer the matter to the Standards
Committee with its report and findings.
Any Member, officer, or employee of the House who is the
subject of an OCE review has the right to present to the board,
verbally or in writing (at the board's discretion), a statement
responding to allegations prior to the board's referral and
recommendations to the Standards Committee.
During the review (preliminary or second-phase) of a given
matter, the OCE may collect relevant documents and interview
individuals who may have knowledge of the alleged violation. In
the course of such inquiries and interviews, the OCE shall make
any individuals providing information verbally or in writing
aware of federal criminal statutes concerning false statements
made to Congress,\5\ the penalty for violation of which carries
a fine and/or imprisonment. Those individuals will be asked to
sign a statement attesting that they understand the law and
will comply with it. The OCE will be directed to develop its
own set of rules to govern Office functions beyond what is set
forth in the accompanying resolution. Among those rules will be
one stating that all witnesses must sign the above statement.
The Task Force expects the OCE, in addition, to develop
guidelines for OCE action if a witness refuses to sign the
statement, which should include, but not be limited to,
incorporating information to that effect within the board's
findings of fact.
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\5\ 18 U.S.C. Sec. 1001.
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If OCE staff and board members have reason to believe that
statements made in the course of its reviews are false, or that
requested information or documents have been withheld, the
board may take this into consideration during its deliberations
and note this among materials submitted as ``backup documents''
to the Standards Committee for its consideration. The Committee
is expected and encouraged to make note of such information and
take it into consideration during its deliberations.
The end product of the second-phase OCE process is to be
the referral of a matter from the OCE to the Standards
Committee. Each matter under second-phase review by the OCE
must be referred to the Committee for a final decision by
Standards Committee Members. Matters may be referred with a
recommendation to dismiss (as de minimis, insignificantly
substantiated, or for some other reason), a recommendation for
further review, or as unresolved due to a tie vote. Board
members, based on the information gathered by themselves and
staff, shall issue materials to accompany each referral. These
materials will include:
1. Report: A short written Report stating only that the
board recommends the matter be dismissed, recommends that the
matter requires further review, or refers the matter as
unresolved; delineating the vote of board members (e.g. 6-0, 4-
2, etc.), but no board member names; and including a statement
of the nature of the review and the name of the individual who
is the subject of the review.
2. Findings: Preliminary factual Findings based on the
information available to the board at the time of its inquiry,
if any. Such findings shall not contain any conclusory
statements regarding the validity of the allegations upon which
the review is based or the guilt or innocence of the individual
who is the subject of the review. The findings may contain
statements as to what necessary information was unavailable at
the time, including, but not limited to, a list of potential
witnesses the OCE was unable to interview or of requested
documents it was unable to obtain. In addition, the board may
include recommendations for the issuance of subpoenas where
members feel it is appropriate. Finally, the Findings shall
contain citations of any relevant laws, rules, regulations, or
standards of conduct.
3. Other materials forwarded to the Committee may consist
of ``backup'' or supporting documents such as records,
testimony, research, staff notes, and commentary detailing
either why a dismissal is recommended or why a matter is
referred for further inquiry. Cooperative witnesses, who will
not be named by the board within the Findings in order to
preserve confidentiality, should be listed within the
supporting documents for the Committee's information. These
materials shall not be published unless the Standards Committee
deems it necessary and appropriate.
Nothing in these recommendations shall preclude a second
review by the board of the OCE of any given matter. The Task
Force foresees certain uncommon circumstances in which the
board may have terminated a preliminary review of a specific
matter, or recommended dismissal of a matter to the Standards
Committee, only to come across new evidence in the future which
suggests the allegations merit another review. There will be no
``double jeopardy'' considerations preventing subsequent
reviews.
Complaints offered by Members of Congress shall continue to
be submitted directly to the Standards Committee for
consideration under the existing process.
Subpoena Power
During the course of discussions amongst Members of the
Task Force and with stakeholders outside Congress, it was
suggested that the OCE be given either direct or ``indirect''
subpoena power (``indirect'' meaning access through requests to
the Standards Committee that subpoenas be issued returnable to
the OCE). Task Force members discussed these options vigorously
and debated their feasibility. The final decision to exclude
subpoena power was based on a number of factors.
The professional opinions of the House Parliamentarian,
General Counsel, and Congressional Research Service were sought
so that the Task Force could better assess the legality of
delegating such an authority through simple resolution. The
overall consensus indicated that while it might be possible to
do so, a subpoena issued by such a method would almost
certainly be subject to a court challenge unless it was backed
by some statutory authority. Consequently, as a statute would
require both passage by the Senate and the signature of the
President, Task Force members decided against attempting to
pass a bill that was likely to be held up in the legislative
process. It is the hope of the Task Force that its
recommendations be implemented through a swift legislative
process and that the establishment of the OCE take place
equally quickly, so as to commence the improvement of the
ethics process as soon as possible.
Members of the Task Force believe that the timeline
requirements instituted by the new process are critical:
matters will spend at most three months under consideration by
the board of the OCE before being referred to the Standards
Committee for resolution. Due to the fast-paced nature of any
OCE review, the Task Force feels subpoenas issued during that
stage would not constitute successful leverage, as any court
challenge to a subpoena would almost certainly carry on past
the OCE deadline for referral to the Committee. In practice,
subpoenas would not be able to be utilized effectively by the
board and may unnecessarily complicate and delay the ethics
process at that juncture.
Most importantly, the Task Force proposal envisions
significant communication of information from the OCE to the
Standards Committee, including explicit wording recommending
the Committee issue a specific subpoena in its review of a
matter referred by the OCE. The Task Force believes that this
inclusion within the findings transmitted by the OCE to the
Committee strikes at the heart of the issue of compelling
testimony or documents--the threat of a subpoena is likely to
compel a witness to cooperate almost as much as the subpoena
itself. When this fact is considered in light of the long
period of time it takes to issue and enforce a subpoena, and
the desire to move the process along at a reasonable pace, the
Task Force believes it becomes clear why there is no true value
added by issuing subpoenas at this stage in the process. The
Task Force encourages the OCE to make witnesses providing
testimony or those asked to produce documents aware that the
board may recommend a subpoena be issued by the Standards
Committee later in the process.
The degree to which witnesses cooperate with the OCE in its
reviews will play an important role in the decision of the
board whether to recommend the Standards Committee issue a
subpoena. Should the board feel that any witness asked to
provide testimony or documents during the process has not been
cooperative, it may reasonably determine that the Committee
should obtain sworn testimony from that individual and
recommend use of a subpoena to compel the sharing of pertinent
information. The Committee is also expected to properly note
such situations during its deliberations.
Referral to the Committee on Standards of Official Conduct
After completion of the OCE's second-phase review, and at
or before the time limit specified above, the OCE will refer
all matters to the Standards Committee for official
disposition. The Committee must treat all matters referred by
the OCE as properly received and must, upon receipt, commence
consideration according to Standards Committee rule 16,
subsections (b), (c), (d), and (e). Under such provisions, the
Committee shall determine what action is warranted, including,
but not limited to: agreement with any recommendations
transmitted from the OCE, dismissal of the matter, further
investigation through the request for one extension of the time
period for consideration, or establishment of an investigative
subcommittee. Any referral received from the OCE will
automatically bypass the provision outlined in Committee rule
16(a), which allows the Committee's Chairman and Ranking Member
14 calendar days or 5 legislative days to jointly determine
whether information offered as a complaint constitutes a
complaint according to Committee requirements.
In the case of referrals made by the OCE to the Standards
Committee within the 60 days before an applicable election, the
Committee may not accept referrals of matters in which the
subject of the review is a candidate for election. The process
will halt temporarily and proceed the day after the election.
In addition, any reporting requirements placed on the Committee
by this proposal that would occur within the 60-day blackout
period shall be deferred unless the Committee votes otherwise.
The Task Force expects that, in most cases, the Committee will
choose not to disclose any information within the blackout
period; however, should the Committee feel an announcement of
any sort would be in the best interest of the institution and
the public, it may publicize any information it wishes.
Pursuant to its current rules, the Committee may publicize any
information it sees fit within this window, though it has
typically chosen to not to communicate with the public in the
two months prior to an election.
The Standards Committee may request that a board or staff
member of the OCE ``present'' a matter that has been referred
to the Committee. In such circumstances, one member of the OCE
shall be designated to present in person the report and
findings of the board to the Committee and be available to
answer any questions Committee members may have relative to the
matter under consideration. No presentation of the board's
disposition and findings may take place without a request from
the Standards Committee.
Under existing Standards Committee rules, the Committee has
a 45 calendar day or 5 legislative day period, whichever is
later, in which to determine necessary action as outlined
above. At the end of that period, or upon making a
determination, whichever occurs first, the Committee must issue
its own public statement regarding its action on the matter
referred by the OCE and delineating the vote of the Standards
Committee, and a copy of the OCE board's report and findings.
The exception to the above is a case where the board
recommends dismissal of a matter and the Committee concurs, or
where the board refers a matter as unresolved due to a tie vote
and the Committee dismisses it. Under such circumstances, the
Committee is not obligated to release the OCE report and
findings, though it may vote to do so at its discretion.
The Committee may, either by joint decision of the Chair
and Ranking Member or by vote of the Committee, extend the
initial period of consideration by one additional period of 45
calendar days or 5 legislative days. If the Committee so
extends a matter referred by the board with a recommendation
for further review, it must, on the day of such decision, make
a public statement announcing the extension of the given
matter. If the Committee extends a matter referred by the board
with a recommendation to dismiss or as unresolved due to a tie
board vote, the Committee is not required to publicly announce
the extension.
If the Committee deadlocks on a matter, the Committee must
publicly release the board's report and findings but may
otherwise adhere to its existing rules. This action will allow
the public some cognizance of the facts of the matter even if
the Committee is unable to resolve it officially.
Should the Committee empanel an investigative subcommittee
regarding a matter referred by the board, it must publicly
announce that fact upon creation of the subcommittee, but
otherwise shall not make public the report and findings of the
board until the completion of the subcommittee process. If that
process is not completed after one year from the date of
referral, the Committee shall publicly release the report of
the board. And if, at the close of the Congress in which the
report was released, the investigative subcommittee has not
completed its process, then the Committee shall publicly
release the findings of the board.
The Standards Committee maintains its current ability to
resolve matters with private or public letters as it so
chooses. Any sanction it may currently impose according to
Committee rules will not be precluded by the Task Force's
recommended proposal. In fact, members of the Task Force
anticipate matters that may be best dismissed by the Committee
as a de minimis technical violation but may also necessitate a
private letter to a Member outlining obligatory future
compliance with rules. Such situations are certain to arise and
should be dealt with in a manner appropriate to their scope and
significance.
The Standards Committee, according to its current rules,\6\
may defer action on a complaint when requested by appropriate
law enforcement or regulatory authorities. The Committee may
continue this practice with respect to matters referred by the
OCE as well. If the Committee does defer action on a matter at
the request of such authorities, it shall make a public
statement to that effect within one day of agreeing to the
deferral. In the case of a matter referred by the OCE for
further review, the Committee must also release the report of
the board. If, one year after the deferral to law enforcement
or regulatory authorities, the Committee has not acted on the
matter, the Committee must make a new public statement
announcing that it is still deferring taking action on the
matter and must renew this statement each year as applicable.
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\6\ See Standards Committee rule 15(f).
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The Task Force recognizes that this addition to the ethics
process may increase the workload of the Standards Committee
beyond the capacity of its current staff. Task Force members
encourage and expect the House to respond as necessary and
appropriate to provide sufficient staff to allow the Committee
to meet its new obligations under this resolution.
The process outlined above guarantees a public statement on
nearly every matter that is reviewed in the second phase by the
OCE. While a few matters will necessitate further, more
expansive investigation by an investigative subcommittee of the
Standards Committee, it is the goal of the Task Force to ensure
that the public is made aware of information concerning each
significant alleged violation in a timely fashion. As such,
Members of Congress and the general public can be assured that
the OCE and Standards Committee are aware of certain
allegations and that the process for consideration of those
matters has been triggered.
The Task Force has included an attachment to this report
which delineates the various steps associated with the OCE
process and the possible outcomes (Attachment B).
Cooperation with the Committee on Standards of Official Conduct
The Task Force intends the OCE and the Standards Committee
to work cooperatively to ensure that allegations of misconduct
are dealt with properly. The Standards Committee will be
notified early in the process of all matters under review by
the OCE and will be kept abreast of the status at each
subsequent step.
After receiving notification that the OCE is reviewing a
given matter, the Standards Committee may, if it is already
investigating that matter, request that the OCE cease its
investigation and refer the matter directly to the Committee.
The Task Force envisions certain cases where a matter may
already be the subject of an undisclosed Standards Committee
investigation in which the OCE may wish to avoid interference.
In addition, it is possible that the Standards Committee may
possess more complete information than the OCE regarding an
alleged violation and may be better equipped to handle the
matter.
The board of the OCE must cooperate with such requests from
the Standards Committee at any point in the process. Along with
the early referral of the matter at hand, the board must
transmit a Report stating simply that the matter is referred to
the Standards Committee at the request of that Committee. The
board will not transmit any findings, as board members will not
yet have reached that stage in the process regarding the
relevant matter. Such a referral shall be treated as any other
from the OCE to the Standards Committee and will commence the
45 calendar day or 5 legislative day period in which the
Committee may consider the matter before releasing a statement
on the committee's disposition, along with the board's report.
The Committee must follow all reporting requirements in such
cases, including a release of the board's report at the end of
the applicable time period, even if the matter is dismissed or
remains unresolved.
If the Committee has not reached a final resolution, or
properly deferred its review at the request of an appropriate
law enforcement entity, by the end of the applicable time
period (either after the Committee's initial 45 calendar day or
5 legislative day period or after an extension), then the
Committee must so notify the board of the OCE, which will then
commence an automatic second-phase review of the matter (or
recommence its suspended second-phase review, as applicable).
For the purposes of this provision, final resolution shall
include dismissal of the matter the Committee requested early
from the OCE, establishment of an investigative subcommittee
regarding the matter, or a conclusion or action which clearly
indicates that the matter will no longer be considered by the
Committee. In circumstances where the Committee notifies the
board of the OCE that it has not reached a final resolution in
such a matter, the OCE will follow its regular procedure from
the second-phase review forward--by collecting evidence,
interviewing witnesses, establishing a set of findings, and
referring the matter to the Committee for its disposition. Once
a matter that had been requested early by the Committee is
returned to the OCE for an automatic second-phase review as
detailed above, the Committee may not request another early
referral. The matter must proceed through the regular process
from that point forward.
Nothing in this proposal shall prohibit general
communication between OCE board members and the Standards
Committee not relating to specific matters under review by
either entity. The Task Force believes that board members
should be able to convey certain ideas and advice to the
Committee regarding, for example, recommendations as to which
policies it might be helpful to outline for Members in ``pink
sheets'' or guidance memoranda. Such communication would be
both acceptable and useful to the process.
The Task Force has been informed and believes that the
accompanying resolution is joint and severable. Should any
provision be found in the normal course of events to be invalid
or unconstitutional, the remainder of the resolution will
stand.
Observations and Comments
This section details a number of issues that, while not
directly within the purview of the Task Force, were discussed
at multiple points in Task Force sessions and were consistently
considered to be relevant to the work at hand. Task Force
members formulated thoughts based on their observations of the
Standards Committee process, and would like to offer the
following informal commentary in addition to the formal
recommendations detailed above.
General transparency of Standards Committee work
During the course of Task Force meetings, it became clear
that members, none of whom currently serve on the Standards
Committee, did not feel they had sufficient quantitative
information on the day-to-day work of that Committee. Members
frequently commented that they did not know whether the
Committee was investigating certain cases presently being
highlighted in news reports. This lack of transparency,
discernable even to current Members of Congress, presents
barriers to comprehension of, and trust in, the Committee's
execution of its duties.
The Task Force recognizes that the rules governing
Standards Committee confidentiality and reporting were first
created along with the establishment of the Committee in 1967,
and have been refined by subsequent ethics reform efforts. As a
consequence, many of the confidentiality provisions were put in
place to protect Members' reputations from false claims in an
age when such reputations could be protected. The media and
public interest groups operated under a different set of
standards than they do now, and information was not as readily
available to the public as it is now with the advent of weblogs
(or ``blogs''), which often operate with few or no standards.
Constant allegations and press conferences announcing alleged
unethical behavior were not de rigueur. Presently, however, it
is common for allegations to appear in the media before an
ethics investigation has concluded and often before it is known
whether, in fact, a matter is being investigated. While the
Committee may not comment publicly on any complaints it has
accepted, the public is made aware of ethics allegations
through other sources and can reasonably expect that the
Standards Committee should consider or investigate those cases.
In addition, both Members of Congress and the general
public should be presented with information evidencing the work
of the Standards Committee, even if that work is confidential,
so that they may know the ethics process has not broken down.
The Task Force believes that increased transparency in the
statements and reporting of the Standards Committee will not be
unduly burdensome, and will instead serve to inform interested
parties of successful application of the ethics process.
Coordination with law enforcement and regulatory authorities
Standards Committee rules provide for the ability to
``defer action on a complaint . . . when . . . the Committee
has reason to believe [it] is being reviewed by appropriate law
enforcement or regulatory authorities. . . .'' \7\ This
situation most commonly arises when an ethics complaint
corresponds to alleged criminal conduct on the part of a
Member, officer, or employee of the House. Frequently,
authorities such as the U.S. Department of Justice will request
that the Committee defer its review or investigation so as not
to interfere with an ongoing criminal (or regulatory)
investigation. The Committee usually abides by such requests to
avoid jeopardizing the authorities' work.
---------------------------------------------------------------------------
\7\ Ibid.
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The Task Force is comfortable allowing the Committee to
decide whether to defer to other authorities when asked.
However, Task Force members have observed general displeasure
with the lack of transparency at this step in the ethics
process. It is often unclear to Members and the public if the
Committee has undertaken a review of well-known ethics charges
when no public statement is made by the Committee.
Therefore, the Task Force believes that the Standards
Committee should publicly state, as standard procedure, that a
matter before the Committee is deferred at the request of law
enforcement or regulatory authorities. This proposal recommends
many actions to increase transparency. Nonetheless, the Task
Force encourages the Standards Committee to review its own
procedure and rules, regardless of the suggestions in this
proposal, to shed as much light on their process and workings
as possible in order to increase respect for its work and faith
in Congressional processes in general.
Reporting of Standards Committee activities
After the close of each Congress, the Standards Committee
publishes a ``Summary of Activities'' which provides
information on Committee work from that Congress. Included in
the report are lists of Committee publications, briefings
offered, advisory opinion letters, markups of legislation,
hearings, and some investigations. The material offered
regarding investigations is only that which has been made
public and pertains to a select number of cases. The committee
does not include confidential information on investigations,
nor does it include more general statistics on its work.
Task Force members, during the course of their meetings,
expressed interest in obtaining further statistical information
from the Standards Committee. For example, members asked to see
reporting regarding the number of instances where information
was offered as a complaint (from Members and non-Members), the
number of accepted complaints, the number of complaints
dismissed as frivolous or de minimis, the number of
investigative subcommittees empanelled, and the number of
complaints resulting in sanctions. The Task Force understands
that much of the substance of the Standards Committee's
proceedings is, by necessity, confidential. However,
statistical reporting--furnished without identifying
characteristics which would tie it to specific Members--would
help to assure Members and the public of the continued
diligence of the Committee in overseeing the ethics process.
The Task Force suggests that the Standards Committee work
to increase the transparency of its work through greater
disclosure of statistical information in its annual report.
Transparency in the Standards Committee's investigative process
The Task Force was not charged with studying and proposing
changes to the Standards Committee's process, only with
considering the creation of an independent enforcement entity
to supplement the process. While Task Force members understand
that such study of Committee process is not strictly within
their purview, they did observe that some cases appear to
linger for prolonged periods of time. Given that the duration
of any investigation is difficult to predict at its outset,
Committee rules do not specify a timeframe in which certain
actions must be taken, benchmarks achieved, or reports be
issued. During these prolonged periods, the House and general
public may be left with the belief that nothing is happening
and that the process has broken down. This situation feeds
further public distrust in the House ethics process.
The Task Force suggests that issues of reporting,
transparency, and finalization in the Standards Committee's
process be considered during future ethics process
deliberations.
Attorneys' fees
The Task Force discussed the issue of reimbursement for
attorneys' fees for those individuals who are the subject of an
OCE review that is ultimately dismissed by the Standards
Committee. Members agree that in those instances where the
matter is dismissed, the Member, officer or employee of the
House named in the review should not be penalized for seeking
legal counsel. It would be useful to have, within reason, a
certain recourse through which reimbursement could be obtained.
However, the Task Force decided against the inclusion of the
concept in this proposal so as not to overload the OCE and the
process from the outset.
The notion of granting reimbursement for attorneys' fees
deserves further study to consider whether such an approach is
feasible and capable of being implemented. Such a power would
most likely require statutory authority and would perhaps best
be vested in the Standards Committee. The Task Force finds that
the concept has merit and believes that it should be considered
in depth to supplement the ethics process in the future.
Continuing review of ethics process
The Task Force recommends that the House establish a panel
of Members to conduct an ongoing review of the ethics process
during the 110th Congress and perhaps beyond.
Since the start of the 110th Congress, significant changes
to the Rules of the House were approved which aim to clarify
acceptable conduct for Members in the exercise of official
duties. These new provisions include a ban on gifts from
lobbyists, a ban on travel provided for by entities that employ
lobbyists, increased disclosure requirements, and strict
prohibitions on Members' partisan influence in the employment
decisions of private entities. These modifications were agreed
to in broad, bipartisan fashion in order to ensure a more
ethical Congress. However, it is both understandable and clear
that implementation of those reforms leads to procedural
difficulties. If the recommendations from this Task Force are
adopted, it is certainly reasonable to expect that unforeseen
adjustments will have to be made for the same reason.
Furthermore, it is possible that the House may seek to expand
the role of the OCE in the future to encompass duties such as
overseeing Members' and staff's financial disclosure reports,
travel forms, and lobbying disclosure forms.
In addition, as stated above, there are Standards Committee
rules and processes that, while they may warrant improvement,
were not within the scope of the Task Force. Standards
Committee rules with respect to timelines for action and
decision-making merit further study and possible revision, with
the goal of ensuring a timely consideration and resolution of
matters before the Committee. Such further consideration would
benefit the process by allowing for discussion of outstanding
issues the Task Force was not able to address.
It is for these reasons that the Task Force believes a
continued presence in the review of ethics processes is
desirable. Task Force members understand that they cannot
foresee every potential scenario, and that they cannot account
for every question that may be asked regarding the
implementation of the above recommendations. In light of the
evolving nature of the ethics process this historic session, it
would be prudent to oversee implementation of all new rules and
procedures with the goal of making further recommendations, if
necessary, to ensure that the reforms intended are, in fact,
achieved.
Conclusion
The Special Task Force on Ethics Enforcement understands
that continuous review and improvement of the House ethics
process is necessary to ensure a high standard of ethical
behavior for Members of Congress and its employees, and to
guarantee a practical and functional enforcement of that
standard. Congress must constantly work to maintain public
trust in the institution through oversight of the ethics
process. The proposals outlined above will likely serve as the
basis for improvements that the Task Force hopes will be
ongoing, as Members learn to navigate an enhanced system that
allows for increased transparency and accountability. The Task
Force does not intend its recommendations to be punitive or
unduly cumbersome. Modifications enumerated within this report
endeavor to benefit both Members and the public by allowing for
increased confidence in the process and measurable timeframes
under which discernable action shall occur. The continued
cooperation of all Members, regardless of party affiliation or
partisanship, is essential in order to guarantee a successful
and effective ethics process within the U.S. House of
Representatives.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
The chart included below is intended to aid in
comprehension of the OCE process as envisioned by the Task
Force. The steps enumerate the many possible actions to be
taken by both the OCE and the Standards Committee according to
the Task Force's proposal and illustrate the associated
outcomes at the end of the process.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Attachment C--Addendum to the Report of the Special Task Force on
Ethics Enforcement
H. Res. 895 was introduced in the House of Representatives
on December 19, 2007 in order to give Members an opportunity to
review the Task Force proposal and offer feedback. The Task
Force Report was issued the same day. In February 2008, the
proposal was scheduled for consideration in the House Committee
on Rules, with consideration on the floor of the House expected
to follow. By that point, many Members had raised concerns
about certain aspects of the Task Force's recommendations that
they felt could jeopardize the intended bipartisan nature of
the proposal.
Specifically, Members called attention to: the concern that
the make up of the OCE board might encourage partisanship, the
provision that would allow two OCE board members appointed by
the same party leader to initiate a review in a potentially
partisan manner, and the process by which only an affirmative
vote of four OCE board members could terminate a preliminary
review once begun. In addition, Members asked that provisions
prohibiting disclosure of confidential information and
requiring a strictly non-partisan OCE staff be strengthened.
Task Force members wished to be responsive to the thoughtful
concerns of their colleagues, and they thus amended the
proposal to reflect a stronger call for bipartisanship and a
professional process.
Joint appointments
As originally proposed, H. Res. 895 provided for OCE board
appointments to be made jointly by the Speaker and Minority
Leader for up to 90 days. If a full complement of board members
was not appointed within that timeframe, the proposal then
called for the Speaker and Minority leader to separately
appoint board members to fill the remaining vacancies.
Members of Congress expressed concern that such an
appointment process could lead to an unwanted element of
partisanship on the OCE board. If any board members were
appointed separately by either party leader, there could, in a
worst case scenario, be an incentive to place those with
partisan motivations on the board. The consensus among Members
was that it would be preferable and result in a better
functioning ethics process if board members were only appointed
jointly by the Speaker and Minority Leader.
H. Res. 895 was therefore altered to reflect this change.
All appointments to the OCE board must be made jointly with no
time limit. The Speaker shall nominate three board members,
subject to the concurrence of the Minority Leader. Likewise,
the Minority Leader shall nominate three board members subject
to the concurrence of the Speaker. This process will encourage
both leaders to nominate responsible, professional, and
judicious individuals who will readily be approved on the basis
of strong professional credentials.
The Task Force recognizes that excessive partisanship could
result in no joint appointments if one or both party leaders
refuse to take their responsibilities seriously. Nonetheless,
we also believe that such recalcitrance will be so obvious that
the leader responsible for excessive partisanship will be known
to the general public and his/her party will be subjected to
public scorn. If public pressure is not sufficient, then no
power on earth can restore public confidence in our process. If
this is the fate of this endeavor, it should be known early in
the process.
In addition, the Speaker and Minority Leader shall each
nominate at least one alternate member of the OCE board subject
to the concurrence of the other leader. Alternate members are
intended to ensure that the board functions smoothly during
periods of transition. Any vacancy that occurs on the board
shall be temporarily filled by the most senior alternate board
member nominated by the same leader who nominated the person
vacating the position. The alternate shall serve until a
permanent replacement is selected. If no permanent appointment
is made within 90 days, the alternate shall be deemed to have
been appointed for the remainder of the term, and the
appropriate leader shall nominate a new alternate subject to
the concurrence of the other leader.
Initiation of preliminary reviews
H. Res. 895, as introduced, called for the initiation of
preliminary reviews in the OCE at the written request of any
two board members. This provision would have presented the
possibility that two board members could initiate a review
based on partisan motivations, targeting a Member or staff of
the other party. Members of Congress considered that scenario
harmful to the governance of the institution, and asked that it
be changed to ensure that no partisan ``witch hunts'' could be
undertaken by the OCE board.
The proposal was amended to require that any preliminary
review be initiated only by a bipartisan request from two board
members--one requesting member nominated by the Speaker, the
other nominated by the Minority Leader. This change codifies
the bipartisan working relationship that members of the board
must adhere to in order to effectively execute their duties to
the OCE. It also directly responds to concerns that partisan
attacks could be launched within the OCE by blocking any
potential for such action.
Advancement from preliminary to second-phase review
In addition, OCE procedures regarding the advancement of a
review from the preliminary stage to the second-phase came
under scrutiny. In the original proposal, a preliminary review
could only be terminated by the affirmative vote of at least 4
board members. In effect, this meant that preliminary reviews,
once initiated, could only be stopped from progressing to the
second phase by a substantial effort of board members. All
other reviews (not terminated) were to move forward
automatically to the second-phase review, at which point their
referral to the Standards Committee is compulsory.
In order to ensure that a certain threshold of credibility
is met in each review, the proposal was altered to require 3
board members to vote affirmatively in favor of advancing a
preliminary review to the second-phase. Essentially, the
original two, jointly-appointed, bipartisan members must
convince at least one more jointly-appointed member that more
information is needed to in order to make a thoughtful decision
on an allegation. This change effectively enforces that
threshold while also making it impossible to use partisan
stonewalling to thwart a reasonable review once it has begun.
Other amendments
The Task Force wished to properly respond to a number of
other general concerns that were raised regarding
confidentiality of information and communications, as well as
professionalism of OCE staff members. Language on these
provisions was strengthened to reflect a commitment to the
integrity and competence of the OCE and its processes.
H. Res. 895 was amended to clarify the following aspects:
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 ban on ex parte communications applies to OCE
staff as well as board members.
Board members and staff of the OCE will be
required to sign the same pledge of confidentiality as
currently required for Standards Committee staff.
Board members and staff of the OCE will be clearly
prohibited from leaking information pursuant to the same
limitations that apply to Standards Committee Members and
staff.
OCE staff, as well as OCE board members, are
subject to the three-year pledge not to seek federal elective
office.
OCE staff are subject to the same restrictions as
Ethics Committee staff relative to non-partisanship,
prohibition on political activity, etc.
Conclusion
The redrafted version of H. Res. 895 is included in this
report as Attachment D. It was adopted by the House on March
11, 2008, by a vote of 229-182 (see Roll Call 122 of 2008).
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