[Congressional Record Volume 151, Number 21 (Tuesday, March 1, 2005)]
[House]
[Pages H830-H832]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE 109TH CONGRESS'S RULES PACKAGE
The SPEAKER pro tempore (Mr. Dent). Under the Speaker's announced
policy of January 4, 2005, the gentleman from West Virginia (Mr.
Mollohan) is recognized for 20 minutes as the designee of the minority
leader.
Mr. MOLLOHAN. Mr. Speaker, the 109th Congress's rules package, which
was adopted this past January on a straight party-line vote, included
provisions that made major unfortunate changes in the rules governing
consideration of ethics complaints by the Committee on Standards of
Official Conduct. I am today introducing a resolution that would amend
or repeal those provisions.
There cannot be a credible ethics process in the House of
Representatives unless the Committee on Standards of Official Conduct
is able to consider complaints against Members and staff in a thorough,
efficient, and nonpartisan manner. I am concerned that those provisions
of the rules package, if allowed to stand, will seriously undermine the
committee's ability to perform this critical responsibility.
The rules package made essentially three changes in the rules
governing ethics complaints. The first change is the Automatic
Dismissal Rule, which requires the committee to consider an act on any
complaint within a period as short as 45 days or else the complaint
will be automatically dismissed.
The second is a set of changes that applies where the committee, or
an investigative subcommittee, decides to conclude a matter by issuing
a letter, notification, or a report that refers to the conduct of a
particular Member. These changes provide a number of so-called ``due
process'' rights to such a Member, one of which is the right to demand
that the committee establish an adjudicatory subcommittee to conduct an
immediate trial on the matter.
The third change concerns the matter of a single attorney
representing more than one respondent or witness in a case before the
committee. Under this change, the committee is prohibited from
requiring that a respondent or witness retain an attorney who does not
represent someone else in the case.
Mr. Speaker, turning first to the Automatic Dismissal Rule, the
Automatic Dismissal Rule constitutes a radical change in the rules
governing the Committee on Standards of Official Conduct's
consideration of complaints. From the time the committee came into
existence until the adoption of this rule, there was only one way that
a complaint filed with the Committee on Standards of Official Conduct
could be dismissed, and that is by a majority vote of the committee.
Because under the prior rules a complaint could be disposed of only by
a committee vote, committee members were required to analyze the claims
made in a complaint, to collect and consider additional information on
the conduct in issue, and to discuss complaints among themselves in an
effort to reach a resolution.
With the enactment of the Automatic Dismissal Rule, the need for this
study, fact gathering, and discussion within the committee will be
significantly reduced, if not entirely eliminated, in any instance in
which five committee members are initially inclined to vote to dismiss
the complaint. What incentive would those members have to give genuine
consideration to the complaint? Under the new rule, they need do
nothing more than sit on their hands and the complaint will disappear.
Of course, this rule change will have its greatest impact on the
controversial high-profile complaints that come before the committee,
but it is in the handling of complaints of that kind that the
committee's credibility is most at stake. In short, while the long-term
interests of the House require that committee consideration of all
complaints in a reasoned, nonpartisan manner be made, the effect of the
Automatic Dismissal Rule will be instead to promote partisanship and
deadlock within the committee.
Why was the Automatic Dismissal Rule included in the rules package?
The sole rationale that was offered for the Automatic Dismissal Rule
was that it would ``restore the presumption of innocence.'' Yet how
does the Automatic Dismissal Rule restore the presumption of innocence?
If a complaint against a Member is dismissed automatically because of
committee inaction over a period as short as 45 days, is that Member in
any position to claim vindication or that his conduct has been cleared
by the committee?
[[Page H831]]
The far more likely effect of a dismissal in those circumstances is
that there would continue to be a cloud over that Member. So this rules
change, in fact, does no favor for any Member who is the subject of a
complaint. And no matter what the impact of the particular Member
involved, any automatic dismissal of a valid complaint would do
incalculable harm to the image and reputation of the House of
Representatives as an institution.
It is also very pertinent to note that about 7 years ago when the
report of the House bipartisan task force on ethics reform was before
the House, Members had a meaningful opportunity to consider an
automatic dismissal rule and they rejected such a proposal on a strong
bipartisan vote. At that time the proponents of the rule argued that it
would be unfair to a Member to have a complaint pending indefinitely
before a deadlocked committee and that the proposed rule was akin to a
judge declaring a mistrial when a jury was deadlocked. The fallacy of
that argument was exposed when it was pointed out that a judge, in
sending a case to the jury, never gives a set number of days for
deliberation before a mistrial will be declared because to do that may
guarantee that the jury will be deadlocked.
It is also noteworthy that the Automatic Dismissal Rule that was
considered and rejected in 1997 gave the committee a far longer period
of time to attempt to act on the complaint. That proposal was key to a
committee vote on an unsuccessful motion to refer a complaint to an
investigative committee, and it provided for automatic dismissal only
if the committee failed to dispose of the complaint within 180 days
after that vote.
The sheer unreasonableness of the Automatic Dismissal Rule that was
enacted in the rules package for this Congress in January is shown in
that the amount of time allowed for committee consideration of a
complaint is as short as 45 days and cannot exceed 90 days. Because
under committee rules a Member is allowed 30 days to file an answer to
a complaint, that means the committee may have as few as 15 days to
consider a complaint and answer, as well as whatever other facts it is
able to gather in that brief period of time, before the complaint is
automatically dismissed.
This Automatic Dismissal Rule must be repealed, Mr. Speaker, and it
would be repealed upon approval of the resolution that I am offering.
Regarding the provisions of the rules package that provide certain
so-called ``due process'' rights to Members, the resolution that I am
proposing does not repeal those provisions in their entirety, but it
does make a significant change in them. Where the committee or an
investigative subcommittee proposes to issue a letter or other document
that includes comments that are critical of a Member's conduct, it is
reasonable to provide that Member with certain rights, such as prior
notice and a meaningful opportunity to respond.
But the so-called ``due process'' provision of the rules package goes
well beyond this, for they also provide a Member with the right to
demand that the committee create an adjudicatory subcommittee to
conduct an immediate trial on the conduct in question.
As a practical matter, Mr. Speaker, the effect of granting this right
to Members is that the committee no longer has the ability to resolve a
complaint by means of a letter that is issued in lieu of undertaking a
formal investigation. In other words, under the due process provisions
as now in effect, the committee, as a practical matter, now has only
two options regarding each of the allegations made in a complaint: send
the matter to an investigative subcommittee for a formal investigation
or dismiss it.
Why is this so? It is important to understand that the committee
would propose to resolve a complaint by the issuance of a letter of the
kind referenced here only where it determines that a formal
investigation of the matter is not warranted. While these letters are
based on and reflect the information available to the committee on the
conduct alleged in the complaint, the fact is that as of the time that
the committee would propose to issue such a letter, not a single
subpoena in the matter would have been issued and not a single witness
would have been deposed. Yet these due process provisions confer upon
the respondent Member the right to demand an immediate trial regarding
that matter, a trial that would take place with no formal investigation
ever having been conducted.
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No committee that is at all serious about conducting its business
would allow itself to be put in that position. The other due process
provisions that confer this same right with regard to certain
notifications issued by the committee and certain reports issued by
investigative subcommittees suffer the same flaw.
The resolution I am proposing corrects this flaw by deleting the
Member's right to demand an immediate trial and providing instead that
the Member has the right to demand the establishment of an
investigatory subcommittee to conduct a formal investigation in the
matter in question. Possibly that investigation would conclude that the
Member did not violate any law, rule or standard.
But if instead the subcommittee determined that there was substantial
reason to believe that a violation had occurred, then there would be a
trial before an adjudicatory subcommittee. Under the resolution I am
proposing, a Member would also continue to have the rights to prior
notice and an opportunity to respond to a letter, notification or
report that references that Member's conduct.
Finally, Mr. Speaker, the third change in the rules that was made by
the 109th Congress rules package concerns the matter of a single
attorney representing more than one respondent or witness in a case
before the committee. The rules package added provisions to the rules
labeled ``right to counsel provisions'' that absolutely prohibit the
Committee on Standards of Official Conduct from requiring a respondent
or witness retain an attorney who does not represent anyone else in the
case. My resolution would repeal those provisions.
The committee has had no rule that prohibits a single attorney from
representing more than one respondent in a case and neither the
committee nor any subcommittee has ever prohibited a party or witness
from retaining an attorney who represents someone else in the case. But
two separate investigative subcommittees, including the subcommittee
that investigated House voting on the Medicare legislation in 2003,
specifically raised the concern that multiple representation may impair
the fact-finding process and recommended that the committee adopt a
rule or policy that addresses this concern.
The reasons for these subcommittees' concern is very clear:
Representation of multiple respondents or witnesses by a single
attorney potentially seriously undermines any effort by an
investigative subcommittee to sequester witnesses and thereby to obtain
their full and candid testimony. In fact, in the other case in which
the investigative subcommittee raised this concern, the Member who was
under investigation had arranged for his own attorney to represent
nearly a dozen of the witnesses who had been called before the
investigative subcommittee.
We see the problem clearly. Yet the right to counsel provision of the
rules package entirely disregards the experience of and the
recommendations made by these investigative subcommittees, and they
absolutely preclude the committee from taking any action to address
this problem. Almost certainly those provisions of the rules package
will serve to encourage respondents and witnesses to employ the same
counsel in cases before the committee and will thereby make the problem
identified by the investigative subcommittee far worse.
In short, Mr. Speaker, no matter what the intent of any of these
provisions of the rules package might have been, their effect will be
at a minimum to seriously undermine the ability of the Committee on
Standards of Official Conduct to consider and act on complaints in a
credible way. In particular, the practical effect of the so-called due
process provisions now in effect is to substantially eliminate the
committee's ability to resolve a complaint short of a formal
investigation and thus to force the committee to decide between either
dismissing a complaint entirely or sending it to a formal
investigation.
[[Page H832]]
Under the new automatic dismissal rule, where there are five
committee members whose initial inclination is to vote to dismiss the
complaint, the likely result will be an automatic dismissal in a month
and a half. Even if a complaint does make it to an investigative
subcommittee, the right-to-counsel provisions will make it far more
likely that the respondent and witnesses will be represented by the
same counsel, and thus will have an opportunity to undermine the
subcommittee's work by coordinating their testimony.
Approval of the resolution I am introducing will undo the harm done
by these provisions of the rules package. Approval of this resolution
will also provide a clear and desperately needed signal to our
constituents that the House is firmly committed to protecting its
reputation and integrity and that the House does intend to have a fair
and effective process for considering and acting upon credible
allegations of wrongdoing.
Approval of this resolution, Mr. Speaker, is also necessary for one
other reason, and that is to affirm the long-standing principle in the
House that major changes in the ethics rules and procedures must be
made on a bipartisan basis. When the House revisited its ethics rules
and procedures in both 1989 and 1997, the work was done through
bipartisan task forces that gave thoughtful consideration to proposals
from all Members. In contrast, Mr. Speaker, the changes made in the
rules package adopted in January were made on a party line vote, with
no input whatsoever from anyone in the minority.
Approval of this resolution will be a critical step in restoring the
bipartisanship that is essential if there is to be a meaningful ethics
process in the House.
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