[Congressional Record Volume 141, Number 198 (Wednesday, December 13, 1995)]
[Senate]
[Pages S18567-S18568]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       FROM POLITICS TO PARANOIA

  Mr. SIMON. Mr. President, recently The Washington Post had an op-ed 
piece by one of the finest people I have met in my four decades of 
public service: Abner J. Mikva.
  He served in the House, served in the federal judiciary and served as 
counsel to President Clinton. In all three areas he served with great 
distinction.
  I believe we should reflect on his recent op-ed piece ``From Politics 
to Paranoia,'' which I ask to be printed in full in the Record at the 
conclusion of my remarks.
  Along with Senator John Glenn and Senator Jeff Bingaman, I voted 
against the authorization of another million dollars for further 
Whitewater investigations by the Senate committee.
  I believe it will turn out to be a waste of money. I have been 
appointed to that committee, perhaps because of that vote.
  But much worse than the conduct of congressional committees have been 
the excesses of the independent counsels that have been appointed.
  If I were to vote again today on that creation, I would vote against 
it.
  I read recently that the Whitewater independent counsel is now 
investigating two contributions to Bill Clinton's 1990 gubernatorial 
race. And the independent counsel has now spent almost $25 million in 
pursuing every little remote lead.
  Our laws should be enforced and we need independence.
  My own feeling is that we should establish certain standards for the 
Office of Attorney General and then not have an independent counsel.
  Janet Reno is independent. President Gerald Ford's appointment of Ed 
Levi as Attorney General was not an appointment of a close friend but 
rather someone genuinely independent.
  Unfortunately, we have had examples of Attorneys General being 
appointed who are too close to the President.
  But to have independent counsels that run amuck is not in our 
national interest.
  The article follows:

               [From the Washington Post, Nov. 26, 1995]

  From Politics to Paranoia--Misguided Ethics Laws Have Given Us More 
                           Mistrust, Not Less

                          (By Abner J. Mikva)

       It probably was inevitable that after a year as White House 
     counsel some in the media and politics would speculate that I 
     left my job because I ``know something'' I don't want to 
     defend. That suspicion is dead wrong. I left because I am 
     physically tired--but in good health and humor, and I intend 
     to stay that way.
       The long hours were draining, though worth it. But far more 
     demoralizing was what I came to see as a profound loss of 
     faith by the American people in the government they've 
     created. I leave public life at a time when America has grown 
     unusually distrustful of its government and its leaders. Too 
     many of us expect and believe the worst about government, 
     even when no evidence exists to justify our doubts. And I've 
     come to think that some of our intended solutions to this 
     over the years have become the cause of the problem. We need 
     changes in the independent counsel law and others we've 
     created with perhaps the best of intentions.
       Healthy skepticism is necessary to the continuation of our 
     democracy. When it turns to paranoia, it becomes destructive. 
     American history has alternated between the two--from the 
     Watergate reformers and the anti-Federalists who opposed the 
     new Constitution of the 1780s to the paranoia of the ``Know 
     Nothings'' of the mid-1800s to the ``I hate Washington'' 
     crowd of today.
       What seems paradoxical about today's lack of trust is that 
     never have people in government been obliged to disclose more 
     about themselves. Ethics laws, freedom of information laws, 
     conflict of interest laws and others have made public 
     officials live in the clearest goldfish bowl ever. Federal 
     agencies have inspectors general and designated ethics 
     officials whose job it is to ferret out any unethical 
     behavior, whether it is by a Cabinet secretary or a mail 
     clerk. The independent counsel laws provides a mechanism 
     whereby the attorney general must refer out any evidence of 
     criminal wrongdoing by high government officials.
       Yet public confidence in government--the ostensible goal of 
     ethics legislation--is at an all-time low. Indeed the 
     accounting often seems to further the problem by allowing 
     critics to magnify minor blemishes into major defects.
       For instance, there has been a regrettable willingness by 
     politicians and activists in both of our major political 
     parties to use even a hint of ethical misconduct as a 
     political weapon against the other side. Negative political 
     advertising has become an art form for almost every political 
     campaign. Add to this a tendency in the public arena to 
     exaggerate claims of impropriety, and it sometimes becomes 
     difficult for the public to distinguish between legitimate 
     and illegitimate charges.
       The media has added to the excesses. The desire of the 
     electronic media to use sound bites rather than reportage 
     lends itself to the name-calling and the sensationalism that 
     exists. The desperate nature of competition for the print 
     media had caused many newspapers to reach for scandals and 
     follow the lead of the most yellow-journalism rivals.
       Most of the investigations that I dealt with during my time 
     as White House counsel--Whitewater, Waco, the Travel Office, 
     the Mexican peso crisis--were a dismaying waste to time for 
     Congress, for the administration and for the media who kept 
     looking for a nonexistent smoking gun.
       The investigations showed that some people in government 
     made mistakes, used bad judgment, passed the buck and 
     displayed other human fragilities that may be worthy of 
     comment but hardly of an inquisition. In the Waco tragedy, 
     for example, the Department of Justice and the Treasury 
     Department each issued candid reports on the events, 
     including an assessment of blame for the mistakes. The 
     congressional investigations added nothing to the public 
     awareness except to beat up on the agencies. The same is true 
     of the congressional Whitewater investigations where an 
     independent counsel operation has been spending a lot of time 
     and resources to determine whether any governmental officials 
     engaged in wrongdoing.
       I am not an apologist for human shortcomings. Once a 
     government official steps over the ethical line, he or she 
     should be dealt with firmly. The public must know 

[[Page S18568]]
     that we will not tolerate ethical lapses, whatever the personal 
     consequences to the violator. But government cannot daily 
     prove its rectitude to the cynic convinced of government's 
     corruption. A nation where cynicism toward government 
     prevails cannot function effectively.
       Of course, a government that merely implores voters to 
     ``trust me'' will not gain that trust, nor should it. But if 
     our eternal rounds of inquisition and calumny tear down the 
     public trust, and make government out to be a cesspool, if 
     our remedies make public service so unattractive and 
     distasteful as to lose the capacity to recruit new and good 
     people to government--we lose the whole ballgame. We have 
     spent so much time accusing, finger-pointing and exposing, 
     that we have forgotten why we formed a government in the 
     first place. We make it impossible to be governed.
       And yet we are proposing additional ethics reforms, based 
     not on what they can achieve, but rather on the political 
     perception that something must be done. In an attempt to 
     ``out-ethic'' the political opposition, we only make matters 
     worse.
       For example, we already require the filing of too many 
     forms. Every year all of our senior officials spend countless 
     hours preparing financial disclosure forms. Candidates file 
     extensive reports on how they raise and spend their campaign 
     money. The reports are so complicated that most reviewers 
     can't understand what they are reviewing, but they do serve 
     as wonderful traps to snare the unwary official.
       We have lobbying laws on the books that do precious little 
     to expose the difference between legitimate lobbying and 
     improper use of money and favors to gain desired results. 
     There are proposals to add further forms--ones that will do 
     nothing to break the link between lobbying and money. We 
     ought to concentrate our efforts on gift banning and campaign 
     finance reform.
       We ought to evoke the principle that applies to federal 
     judges, who cannot accept anything of value from any party 
     who has an interest in a case before that judge. The judge 
     either refuses the gift or recuses himself from the case. 
     It's a simple principle. Judges understand it; lawyers and 
     their clients understand it; everyone obeys it. In the rare 
     cases where judges violate the rule, they go to jail. What 
     the principle does is break the link between the giving and 
     the ruling. You can give but you cannot buy. Applied to 
     Congress, which recently has banned gifts such as meals and 
     trips, the principle would end the seamy business of members 
     asking for contributions (and getting them) from person most 
     likely to be affected by the member's actions. Obviously, 
     such a plan would necessitate a whole new campaign finance 
     structure, but that is long overdue anyway.
       We ought to reconsider the independent counsel statute. 
     Some may smirk that I of all people would suggest changing 
     it, since I voted for it while in Congress and have had to 
     live with its consequences during this past year. But fewer 
     and fewer people in either political party now believe that 
     it really works. The original purpose of preventing Richard 
     Nixon and his friend and close adviser Attorney General John 
     Mitchell from investigating themselves in the Watergate 
     scandal has been achieved. Since then, 17 independent 
     counsels have been appointed. Their mandates have ranged 
     all the way from investigating whether a White House aide 
     sniffed cocaine in a New York nightclub to whether a 
     cabinet official understated how much money he paid to a 
     woman with whom he had an affair. One investigation--the 
     five-year-old probe of Department of Housing and Urban 
     Development officials--has gone on for so long that the 
     independent counsel announced that the main target had 
     grown too old to pursue. One can question whether even the 
     Iran-contra case or the Whitewater affair wouldn't have 
     best been handled the normal way by Justice Department 
     prosecutors.
       We can do better. We need to amend the statute to provide 
     for qualifications for the independent counsel that guarantee 
     political independence. The counsel ought to be appointed on 
     a full-time basis for a limited period of time. Extensions of 
     the original period of appointment should be allowed only 
     under very limited circumstances. The threshold for seeking 
     an independent counsel should be raised further--to limit the 
     appointment only to cases where it is clear that normal 
     authority is insufficient. The selection process for the 
     special court which appoints and supervises independent 
     counsels should be changed to ensure both the reality and the 
     perception of nonpolitical appointments.
       From the outset, our founders recognized the tension 
     between governing effectively and the elimination of all 
     potential for abuse. George Washington wrote: ``No man is a 
     warmer advocate for proper restraints and wholesome checks in 
     every department than I am; but I have never yet been able to 
     discover the propriety of placing it absolutely out of the 
     power of men to render essential services, because a 
     possibility remains of their doing ill.''
       If we have all these codes of ethics and all of these 
     disclosure laws and all of these investigating institutions 
     and less trust with each addition to the pile, we must be 
     doing something wrong. We need some remedies that will 
     restore the faith.

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