[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.

                              {time}  2115

  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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