[Congressional Record Volume 151, Number 42 (Tuesday, April 12, 2005)]
[House]
[Pages H1875-H1881]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page H1875]]
       THE RULES THAT GOVERN THE ETHICS PROCESS IN THE HOUSE OF 
                            REPRESENTATIVES

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 4, 2005, the gentleman from West Virginia (Mr. Mollohan) is 
recognized for 60 minutes as the designee of the minority leader.
  Mr. MOLLOHAN. Mr. Speaker, I am joined here tonight by three 
distinguished colleagues.
  The gentleman from Maryland (Mr. Cardin) was a member of the 
Committee on Standards of Official Conduct in the 101st, 103rd, and 
104th Congresses. The gentleman from Maryland (Mr. Cardin) cochaired 
with Congressman Bob Livingston at the time the 1997 ethics bipartisan 
task force created to review and propose changes to the Committee on 
Standards of Official Conduct rules and procedures and was the ranking 
minority member of the subcommittee that investigated the complaint 
against then-Speaker Newt Gingrich.
  Second, I am joined by the gentleman from California (Mr. Berman), 
who was ranking minority member on the Committee on Standards of 
Official Conduct in the 105th, the 106th, and the 107th Congresses and 
for the first 2 months of the 108th Congress until my appointment as 
ranking member. Additionally, the gentleman from California (Mr. 
Berman) was the ex officio member of the 1997 bipartisan task force 
created to review and propose changes to the Committee on Standards of 
Official Conduct's rules and procedures.
  Finally, Mr. Speaker, I am joined by the gentleman from Massachusetts 
(Mr. Delahunt), who prior to coming to Congress served as the Norfolk 
County District Attorney for a considerable period of time, from 1975 
to 1996. In the 108th Congress, he was a member of the ethics pool 
appointed by the minority leader and was a member of the investigative 
subcommittee formed to look into the allegations made by then-
Representative Nick Smith arising out of the events occurring during 
the Medicare vote taken on November 2, 2003.
  Collectively, these gentlemen have a tremendous amount of experience 
serving the House of Representatives on the Committee on Standards of 
Official Conduct over a long period of time. Not surprisingly, Mr. 
Speaker, that is the topic of our Special Order tonight.
  The subject that we will be discussing this evening under the Special 
Order concerns the rules that govern the ethics process in the House of 
Representatives. This discussion, I think, will highlight the clear 
need to repeal the changes in those rules that were included in the 
rules package that was adopted when the House convened in January of 
this year, a rules package that was adopted on a strict party line vote 
with all Republicans voting for and all Democrats voting against.
  While a discussion of the rules of this nature necessarily involves a 
number of technical points, Mr. Speaker, there should be no mistaking 
the overriding importance of what we are talking about. Because of the 
ethics rules changes that were included in the rules package I 
mentioned, the House of Representatives is now at a crossroads in its 
ethics process.
  The issue now before the House is, in fact, whether the House will 
continue to have a credible ethics process that can be effective in 
protecting the reputation and the integrity of this institution.
  Mr. Speaker, this is my 9th year as a member of the Committee on 
Standards of Official Conduct and my third year as ranking minority 
member of that committee, and I have studied the ethics process 
carefully during that time. My firm conclusion is that the House will 
not and cannot have a credible ethics process unless the rules changes 
that were made earlier this year are repealed.
  There are at least two reasons why this is so, Mr. Speaker. First, 
there cannot be a credible ethics process in the House of 
Representatives unless changes in the ethics rules are made, as they 
have always been made in the House, Mr. Speaker, in the past years, in 
an open, thoughtful and, most importantly, in a genuinely bipartisan 
manner. But these rules changes were the result of a closed, secret 
process in which no one from this side of the aisle was ever consulted; 
and the votes of the rules package were, as always, strictly party line 
votes.

  Second, the fact is that, at a minimum, these rules changes, the 
specific changes that are attempting to be imposed by the Committee on 
Rules, will seriously undermine the ability of the Committee on 
Standards of Official Conduct to perform its key responsibilities of 
investigating and making decisions on allegations of wrongdoing.
  It is for these reasons that I have introduced House Resolution 131, 
which would entirely repeal two of the three rules changes made earlier 
this year and would repeal as well the objectionable provisions of the 
third rules change.
  Mr. Speaker, let me take a moment to elaborate on each of the reasons 
for the resolution that I have introduced, turning first to the closed, 
partisan manner in which these rules changes were adopted this past 
January.
  Mr. Speaker, the ethics process in the House of Representatives dates 
back to the late 1960s, nearly 40 years ago. It was recognized at the 
very outset that there could not be a meaningful ethics process in this 
body unless it is a genuinely bipartisan one. This makes perfect sense 
because an ethics process that is dominated by the majority party in 
the House will become simply another tool of partisan warfare and will 
have no credibility whatsoever.
  So both when the committee was created and the ethics rules were 
established in 1968, as well as when the rules changes were made in the 
rules in 1989 and again in 1997, those actions, those creation of the 
rules, fashioning of the rules, recommending the rules to the House, 
that whole process was the result of a thoughtful, deliberative process 
that was, in fact, genuinely bipartisan in nature.
  The task force, created with an equal number of Democrats, an equal 
number of Republicans, whether the Republicans were in control of the 
House at the time or whether the Democrats were in control of the House 
at the time, all of the rules changes and their adoption and their 
recommendation to the House of Representatives came out of a genuinely 
bipartisan process.
  The process that was used earlier this year stands in stark contrast 
to those earlier efforts. Those rules changes were drafted in secret, 
and their text was publicly released literally only hours before they 
were to be voted on on the House floor. At no time was anyone on this 
side, on the minority side, of the aisle ever consulted about those 
changes. Likewise, the Committee on Standards of Official Conduct 
itself was not consulted about those rules changes; and, indeed, it is 
not at all clear who was consulted about them or whether their 
proponents really fully understood the meaning and the implications of 
the changes which they wrought.
  It will come as no surprise to anyone that the rules changes 
resulting from such a closed, summary process, it will come as no 
surprise that they are seriously flawed; and that leads me, Mr. 
Speaker, to the second reason why these changes must be repealed.
  As I have mentioned, the rules changes were passed by the majority 
earlier this year. They fall into three categories. The first rules 
change relates to the automatic dismissal of complaints that are filed 
with the committee, automatic dismissal of complaints the first rule 
allows; the second rule granting certain so-called due process rights 
to Members, a cynical characterization of due process I might add; and 
the third so-called right to counsel provisions are contained in the 
last rules change.
  Mr. Speaker, let me begin with the automatic dismissal rule. The 
automatic dismissal rule of the complaint, it constitutes a radical and 
particularly destructive change in the rules. Up until now, a complaint 
filed with the Committee on Standards of Official Conduct, and keep in 
mind that under the rules no one other than a Member of the House may 
file a complaint before the Committee on Standards of Official Conduct, 
but under the old rules a complaint could be dismissed only by a 
majority vote of the committee.

                              {time}  2015

  Under the automatic dismissal rule which the majority is trying to 
impose upon the Committee on Standards of Official Conduct in its rules 
passed earlier this year, a complaint can be dismissed just by the 
passage of time. A

[[Page H1876]]

period as brief as 45 days from the date of the complaint is deemed to 
satisfy the procedural requirements of the rule; and if it is not 
disposed of any other way, the passage of that 45 days will result in 
automatic dismissal of the complaint. Members of the committee could 
have during that period sat on their hands, or they may have been 
engaged in the August recess because it is not legislative days, it is 
calendar days.
  One wonders if the drafters of this rule were even aware that in 
1997, the House strongly rejected an automatic dismissal rule that was 
far less restrictive than this one. The proposal considered at that 
time applied where a motion before the committee to refer a complaint 
to an investigative committee did not pass, and it provided in that 
instance for automatic dismissal of the complaint after 180 days from 
the date of the vote, a lot longer than 45 days under this automatic 
dismissal rule. But even with the 180-day automatic dismissal, this 
House of Representatives in the only recorded vote in the full House on 
a bipartisan basis rejected the idea of a complaint being automatically 
dismissed that is pending before the Committee on Standards of Official 
Conduct simply by the passage of time.
  Even that proposal was defeated on a bipartisan vote because it was 
recognized that any automatic dismissal rule simply promotes deadlock 
and partisanship on the committee. It promotes inaction. It encourages 
members not to fulfill their responsibility. This is especially so in 
those controversial, high-profile complaints that come before the 
committee, and it is in the handling of complaints of that kind that 
the committee's credibility is most at stake.
  Mr. Speaker, if the Committee on Standards of Official Conduct is to 
be worthy of its name, its members must give thoughtful, reasoned 
consideration to every complaint that comes before it; and any rule 
that would truncate that responsibility, that would provide for an 
automatic dismissal of the complaint based on the inaction of the 
members cannot be allowed to stand if our credibility is going to 
remain intact.
  The rules changes that grant certain so-called due process rights to 
Members apply whether the committee or an investigative subcommittee 
proposes to conclude a matter by issuing a letter or other statement 
that references the conduct of a particular Member. While statements of 
that kind do not constitute and are not characterized as a sanction, 
the committee has been very cautious about issuing them; and, of 
course, like any other committee action, such a statement cannot be 
issued without the bipartisan support of committee members.
  It is also important that statements of this kind are issued only 
where the conduct involved has not been the subject of a formal 
investigation, and a determination has been made that the issuance of 
such a statement in an appropriate way to resolve a complaint or other 
allegation of misconduct is an appropriate disposition.
  Where a Member is going to be the subject of such a letter or similar 
statement, it is not, I agree, unreasonable to grant that Member 
certain rights, such as prior notice and a meaningful opportunity to 
respond, but the rules changes go well beyond this for they also grant 
such a Member the right to demand that the committee create an 
adjudicatory, a trial, if you will, subcommittee that is to conduct an 
immediate hearing, an immediate trial, on the conduct in question. 
Where the committee proposes to resolve the complaint by issuance of a 
letter, this trial would take place without any formal investigation of 
the matter ever having been conducted, without a single subpoena ever 
having been issued or a single deposition ever been taken. It gives the 
Member the right to jump immediately to the trial stage.

  No committee that is at all serious about conducting its business 
would allow itself to be put in such a situation. It emasculates that 
part of the committee's power and ability to, in proper due process 
order, develop the factual basis for a disposition perhaps involving a 
trial.
  It may well be that this immediate trial provision was included in 
the rules in order to force the committee, whenever a complaint is 
filed, to decide between two alternatives: either dismiss the complaint 
without having any comment whatsoever on the conduct of the respondent, 
or refer the complaint to an investigative subcommittee for formal 
investigation. But there is no valid reason to hamstring the committee 
in this manner.
  The resolution I have proposed would repeal the right to demand an 
immediate trial but would substitute instead the far more reasonable 
right to demand that the committee commission a formal investigation of 
the conduct in question.
  Mr. Speaker, the third rules change, the so-called right to counsel 
provision, is particularly mischievous, and it might be better 
characterized as the ``right to orchestrate testimony provision.''
  This rules change prohibits the Committee on Standards of Official 
Conduct from requiring in any circumstances that a respondent or 
witness in a case retain an attorney who does not represent someone 
else in the case. This change is particularly egregious in that two 
separate investigative subcommittees of the Committee on Standards of 
Official Conduct had raised the concern that an attorney's 
representation of multiple clients in a case may impair the fact-
finding process, and those investigative subcommittees recommended to 
the full committee the adoption of a rule or policy under which 
multiple representation could be barred. In short, the ethics process 
in the House has been seriously damaged by both the substance of these 
rules changes and the summary partisan manner in which these changes 
were adopted.
  In the case of the latter rule, imagine the lawyer that is 
representing the accused having the absolute right to represent all of 
the witnesses that are going to be interviewed in the case, certainly 
undermining the ability of the committee to do its job.
  But we are still in the early months of this Congress, and it is not 
too late to undo the damage that has been done. We can once again have 
an ethics process in the House that commands the confidence and respect 
of both the Members of this body and the public.
  The first step, Mr. Speaker, is to repeal those rules changes and to 
affirm that any changes in either the substantive ethics rules or the 
rules governing committee procedure will be made as they have always 
been made in the past, only in a deliberative, open and genuinely 
bipartisan manner.
  Mr. Speaker, at this time I yield to the gentleman from Maryland (Mr. 
Cardin).
  Mr. CARDIN. Mr. Speaker, I thank the gentleman from West Virginia 
(Mr. Mollohan) for yielding me this time.
  I had the opportunity to serve on the House Committee on Standards of 
Official Conduct for a little over 6 years during some very difficult 
times for this institution. I remember Speaker Foley calling me and 
asking me to serve on the Committee on Standards of Official Conduct. 
It was not a request. I was being drafted to carry out a very important 
responsibility that we all have. Under the Constitution, we must judge 
the conduct of our own Members. It is a solemn responsibility. How we 
go about doing that will reflect on the integrity of this institution, 
and that is why it is so important that we do it in the right manner 
and in a bipartisan manner.
  Mr. Speaker, we are all human and we do make mistakes, and that is 
why we need a Committee on Standards of Official Conduct, to give 
guidance to Members as well as monitor the conduct so the public has 
confidence that in fact we are carrying out our Constitutional 
responsibility to judge the conduct of our Members.
  For that reason, I thank the gentleman from West Virginia (Mr. 
Mollohan) for his service on the Committee on Standards of Official 
Conduct, very distinguished service on behalf of this institution. And 
I also thank the gentleman from California (Mr. Berman), who has 
devoted much of his time to the ethics work, as has the gentleman from 
Massachusetts (Mr. Delahunt). I thank him for his work on ethics 
issues. We do not issue many press releases for this work. This is not 
something Members do because they want to do, it is something Members 
do because they have to.
  Mr. Speaker, I was on the Committee on Standards of Official Conduct 
when

[[Page H1877]]

we had the charges brought against Speaker Gingrich and the so-called 
banking scandal. Both of those issues were highly publicized, received 
a lot of attention and were extremely difficult matters. I was one of 
the four members of this body that served on the investigative 
subcommittee on Speaker Gingrich. We spent hundreds of hours in 
deliberations and in preparations. We spent months in work, but we 
reached a conclusion. We reached a conclusion not because it was easy. 
We reached a conclusion because we were able to listen to each other. 
We worked not as Democrats or Republicans. We worked as Members of this 
body to do what we are required to do, and that is to judge the conduct 
of one of our own Members, and we reached a unanimous conclusion.
  As a result of that particular case, this body thought that we should 
review the rules under which the Committee on Standards of Official 
Conduct operates. We thought it was appropriate to review the process 
that we use. So what did we do after the Gingrich investigation? The 
majority leader and the minority leader sat down and worked out a 
process that would maintain the bipartisan reputation of the ethics 
process and allow a fair, transparent, open process for looking at 
changes in our ethics rules.
  I was named the co-chair of that task force along with Bob 
Livingston, a Republican, who was named the other co-chair, and we had 
an equal number of Democrats and Republicans on that task force. We 
held hearings, and we had witnesses who came before us. Members came 
before us, and we looked at the concerns that were expressed during the 
Gingrich investigation about trying to move in a more timely manner to 
give due process to each Member and looked at ways to streamline the 
process but still maintain the integrity of the ethics process. That 
was our charge. We came up with changes, and we did that in a 
bipartisan vote of our commission.
  The only way the ethics process works is if it is bipartisan. We 
cannot do it just because one side has the votes in the majority. We 
must maintain the bipartisan manner of the ethics process, including 
the way we change the rules, if we are going to be able to maintain the 
integrity of the process and be able to look the public in the eye and 
say, yes, we are carrying out our constitutional responsibilities to 
judge conduct of our own Members.
  The gentleman from West Virginia (Mr. Mollohan) has gone through the 
three rules changes passed at the beginning of this Congress on a 
partisan vote. I want to talk about one, the automatic dismissal.
  It was interesting, in 1997, a Member of this body offered an 
amendment to our rules package and suggested after 180 days there be an 
automatic dismissal of a complaint, a much more modest proposal than 
the one ultimately brought forward by the Republican leadership and 
passed by the membership on the first day of this session by this 
Congress. That 180-day automatic dismissal was rejected by a bipartisan 
vote in this body in 1997. The reason was quite simple: We thought it 
would just add or just bring us to partisan gridlock.
  Unfortunately, I think that is exactly what is happening. The first 
day of this session we passed a rules change that says after 45 days 
there is an automatic dismissal of a complaint that is brought. So 
inaction becomes action. There have been many serious issues that have 
confronted this Nation that have taken us terms of Congress to deal 
with. For instance, in working on the welfare reauthorization bill, we 
have been working on that for three Congresses, and we have not been 
able to pass it. It has taken time. Inaction here becomes action. That 
is not what it should be and obviously will not have credibility with 
the public.

                              {time}  2030

  Partisanship is rewarded with a deadlock being dismissal. Each of us 
belongs to a political party. The pressure on us would be immense just 
to do nothing for 45 days. I think that is quite obvious. And that gets 
rewarded.
  The ethics process must be bipartisan. We should not have a basic 
rule that rewards partisanship. And then delay is rewarded. Inaction is 
rewarded, as I indicated. And the complexity of the issues that you 
have to deal with on the Ethics Committee would give you a practical 
reason to say, Well, I'm sorry, we couldn't complete it in time and now 
there's an automatic dismissal.
  I think about the Gingrich case that I had to investigate, and I 
think about the complexities and the documents and the depositions and 
all the work that we did in that case. You could not possibly have done 
that in 45 days and do justice to the Member who is accused or the 
institution that is being challenged as to whether we can, in fact, 
investigate a case fairly. Yet this rule change will say, if you cannot 
complete it in 45 days, there can be an automatic dismissal.
  So, Mr. Speaker, for all the reasons that the gentleman from West 
Virginia has pointed out on substance, these rules changes were wrong; 
but I think the underlining point, the most important point here is the 
process must be bipartisan. It was violated in these rules changes that 
were passed at the beginning of this Congress. I urge my colleagues to 
listen to the gentleman from West Virginia. Let us repeal those three 
rules changes and go back to a process that has served this institution 
well over many, many Congresses, a bipartisan process, a true 
bipartisan process to look at rules of the committee and, if changes 
are needed, to do that in a bipartisan manner rather than by the strict 
votes of the majority. I would urge us to do that for the sake of the 
integrity of this institution.
  Mr. MOLLOHAN. I thank my friend from Maryland.
  I would like to invite our colleague from California (Mr. Berman) to 
join this discussion.
  Mr. BERMAN. Mr. Speaker, I appreciate the gentleman yielding and to 
the ranking member of the committee, I thank him for involving me in 
what I think is a very important effort. I think both he and I are not 
prone to come to the floor on Special Orders, and I think our presence 
here tonight indicates just how strongly we feel about what is being 
done to a process that everyone participating in this Special Order has 
spent a great deal of time on.
  If there is a member of the majority or a staff member of the 
majority watching this, I would hope they might sit back, get past the 
irritation over any particular action the committee has taken that they 
may not have liked and think what they have done and realize that what 
they have done in making these rules changes unilaterally and breaching 
the fundamental commitment to a bipartisan process, what that 
ultimately will do and how that will play out in terms of destroying 
the concept of an effective and meaningful bipartisan Ethics Committee 
process.
  And that notwithstanding the constitutional mandate, we will be left 
with a situation where the rules of the House and the standards of 
conduct that we have promulgated and expect Members to adhere to will 
become essentially unenforceable because of the breach in the 
commitment to a bipartisan approach to these issues.
  For me, that approach means the members of the committee throw aside 
the question of how the partisan implications of a particular action 
play out and search for the facts and apply the rules of official 
conduct and the appropriate standards that have been adopted by this 
body and apply those to those facts in a fair, objective, and 
independent way without focusing primarily on the political or partisan 
ramifications of that.
  Both of the previous speakers have spent a great deal of time both 
talking about the process and developing the rule. When I was asked to 
become the ranking member of the Ethics Committee, Minority Leader 
Gephardt told me about this and after a little bit of depression at the 
thought that I would have to spend a serious amount of time doing this 
because, as the gentleman from Maryland mentioned, none of us relish 
this particular job, it is a great deal of time, its direct impact on 
our own constituents or on the substantive issues we care about is 
relatively minor. We are here and we have taken this position in the 
past because of our own commitment to the institution, a very important 
institution, the House of Representatives, and how the work of that 
House is going to be conducted.
  But when Mr. Gephardt asked me to do it, I said, Dick, I don't want 
to fight

[[Page H1878]]

the political battles and the partisan battles in the Ethics Committee. 
He says, The reason I am asking you to take this position is because I 
want to end the Ethics Committee as a place where partisan battles will 
be carried out. It is my commitment to that process that causes me to 
ask you to take this position.
  With that understanding, I did. And I had the great pleasure of 
working with three separate Republican chairmen, members of the 
majority, our former colleague Jim Hansen for the first 2 years, my 
friend and colleague Lamar Smith for the next 2 years, and in the last 
2 years of the Congress for the recent chairman of the committee, Joel 
Hefley. In those 6 years with three different chairmen and a number of 
different members of the committee, particularly on the majority side, 
if I can think of two votes, two times where in a disciplinary matter 
there was a division of the vote, that we did not reach a consensus 
that was accepted initially by the chair and the ranking member and 
then by the entire committee, I cannot think of more than two votes.
  And on the two times when I remember there being some divided votes, 
they were not done on partisan grounds; they were done on individual 
members' interpretations of the facts applying the rules of conduct to 
those facts.
  What has happened here would have been unthinkable during those 6 
years, that the majority party would decide to embed fundamental 
changes in the rules inside the larger House rules package, thereby 
forcing those rules to be addressed in a partisan fashion and then, 
without consultation with the minority, without showing the minority 
what those rules changes were for there to be any possible give-and-
take or effort to achieve a consensus, ramming through those changes in 
the Ethics Committee rules in a way that I will try to establish, as I 
think both of the colleagues preceding me have, hurt the process and 
hurt it very fundamentally.

  So apart from anything else and even the substantive provisions of 
these rules changes, the fact that it would be done on a partisan 
basis, without consultation, without an effort to reach a consensus, 
without coming from the bipartisan Ethics Committee was a terrible, 
terrible mistake and shakes all of our confidence in whether this 
process is even a process we want to participate in.
  I say all of that preliminarily just to say that I hope calmer minds 
and people who put their concern for the institution above their 
irritation with a particular case will think again about what they have 
done and convene some process by which we can bring back the comity 
that has existed, I think, during the gentleman from West Virginia's 
tenure as ranking member and certainly for the 6 years preceding that 
when I was ranking member, because I think we will all be better served 
by that.
  I do want to make one other point. This is the only committee in the 
House that is equally divided between Democrats and Republicans. It was 
the intention of this committee at the creation of this committee and 
the formation of this committee that things be done on a bipartisan 
basis, staff hired on a bipartisan basis, disciplinary matters dealt 
with on a bipartisan basis, advise and consent. When people want to 
know interpretations, we approach it without regard to the political 
and partisan implications of the Member who is requesting or the 
individual who is the object of the disciplinary investigation.
  Going to the rules changes, when former Congressman Tauzin offered an 
amendment to the ethics task force report which provided automatic 
dismissal for 180 days, as both my colleagues who preceded me have 
mentioned, a far more lenient provision than the one adopted at this 
particular time, our friend and colleague Henry Hyde said, Why not 
adopt it? When juries deadlock, the case is dismissed.
  But in saying so, he made our point. The judge does not tell the 
jury, if you don't decide in 2 days or 3 days or any number of days, if 
you are deadlocked at that point, the case is dismissed. You do not 
create incentives for people not to decide. With a rule like this in 
place, the respondent, the object of the complaint, knows that 
stonewalling ultimately leads to dismissal, that Members of the 
respondent's political party, be they Democrat or Republican, are now 
incentivized not to move ahead with the investigation because a certain 
result is predetermined after a certain number of days, and the kind of 
collaboration and coordination that takes place between the chair and 
the ranking member as they come to a determination of whether or not 
they should seek to create an investigative subcommittee or to ask the 
full committee to create an investigative subcommittee is over.
  There can be many issues in these complaints. Some of them maybe 
should go forward. Some of them should not. There is a whole process by 
which staff and the Chair and the ranking member work together to 
investigate and try to come to a collaborative determination. Either 
one of them under the rules that have existed have a right to put the 
item on the agenda if they think there is no further chance at 
consensus. But the one thing I know is that when you set a time limit, 
especially a time limit as short as this one, for the automatic 
dismissal, you are incentivizing those who do not want the process to 
go forward without regard to what the facts are.
  You are incentivizing them to make sure that nothing happens, because 
the result, the conclusion of dismissal is preordained. It is a 
terrible mistake. It is an assault on the collaborative process that 
this committee should operate under and just has to be changed if we 
are going to really move forward in a positive way.
  The second rule that allows the demand of an immediate adjudication 
is also defective, because by doing so, the respondent can obviate the 
investigative process and it can be motivated by the same intent, to 
cut short the investigation, to take away the give-and-take between the 
parties so that they can come to an agreed-upon statement which should 
be sent by the full committee to the investigative subcommittee to 
pursue, weeding out the false complaints or the minor issues, the ones 
that do not raise substantial questions that the rules were violated, 
including the ones that do. It is just another way of undermining that 
process, because you cut short the whole investigation. That 
preliminary investigation is very important in making this whole 
process work.
  Finally, my last comment is on the collusion rule, where you 
explicitly allow attorneys to represent more than one party in a 
matter. Not leaving it to the discretion of the committee, but saying 
that an attorney has a right to represent a number of the different 
people being investigated, you are essentially telling the Member of 
Congress who is the object of a complaint, Go out, hire the lawyer, pay 
for him to represent anybody on your staff or any of your friends who 
might be the subject of this investigation as well and approach a 
common defense which precludes the ability to really effectively 
ascertain the facts. It is truly a collusion rule. There may be times 
when it is appropriate for the attorney to represent more than one 
person involved in the matter, but to give it as a matter of right to 
the respondent in this kind of a case sets up a dynamic, again, that 
destroys the ability of the Ethics Committee to function effectively 
and efficiently.
  With all of those comments, they all go to the overarching point: 
substantively, these rules are a mistake. The way they were done is 
intolerable. I do not know how one could continue to be part of a 
process when we have abandoned that kind of comity and bipartisanship 
that has been a hallmark of this process. The same leadership that 
decided to do this, I think, in a fit of anger and perhaps in a moment 
of unbridled passion has over and over again prior to this time 
reaffirmed their desire to have a bipartisan process as evidenced by 
the people they appointed and by the way those people proceeded and by 
the efforts to do everything on a collaborative basis.
  And it worked. And it worked well. We did not go crazy going after 
Members on pointless grounds. We were not a runaway committee. We also, 
conversely, did not throw evidence of real violations into the trash 
can and ignore them. Why we would want to alter that fundamental 
process at this particular point to the damage of this institution, I 
do not know.

                              {time}  2045

  Mr. MOLLOHAN. Mr. Speaker, I want to thank the gentleman from

[[Page H1879]]

California and the gentleman from Maryland alike, who, based upon years 
of commitment to the Committee on Standards of Official Conduct process 
in the House and lots of experience with different cases and the 
fashioning of different rules, for their very insightful comments.
  I now yield to the gentleman from Massachusetts (Mr. Delahunt), a 
Member who has a very long history, a distinguished career in law 
enforcement as a District Attorney in his home State of Massachusetts, 
who in the last Congress served extremely admirably the Committee on 
Standards of Official Conduct as he was called off the investigative 
subcommittee pool to review one of the most unusual cases that the 
Committee on Standards of Official Conduct has looked at. I thank the 
gentleman for joining us tonight.
  Mr. DELAHUNT. Mr. Speaker, I thank the ranking member for yielding to 
me.
  I have to say they have all served this institution well. They 
provided me with a real history lesson here this evening. I am 
probably, maybe with one exception, their senior in terms of age, but 
they carry a wealth of insight and experience in this issue.
  What I found particularly interesting was that single experience I 
had serving on that subpanel in many ways reflected what they each 
individually came to a conclusion. What I discovered was that it 
worked. We worked hard, much harder than I anticipated. It was long 
hours. We brought before that subcommittee a significant number of 
Members of this House. They fully cooperated, each and every single one 
of them; and we worked in a bipartisan fashion.
  The two Republicans that served on that particular panel, I knew one 
before and I happened to be a classmate, and the other one I never 
really had any contact or communication with. And I have to tell my 
colleagues I was extremely impressed with their concern about this 
institution, with their professionalism, with their standards and their 
willingness to work in an extremely collaborative way. It truly was a 
lesson that bipartisanship exists in this institution, and particularly 
in the rubric in the format of an ethics investigation is absolutely 
essential.
  We talked about the House today, and we all obviously go back to our 
home districts, and we hear our own constituents decry what they 
perceive to be the strident level of partisanship that, unfortunately, 
does exist today within this institution. But my experience on that 
subpanel was really informative, that those who love the institution, 
those who understand that if there is a lack of confidence in the 
integrity of this institution by the American people that we erode the 
health, if you will, the viability of our democracy.
  It really is a sad comment that, without consultation, in a 
unilateral move, these rules changes came to the floor and were 
adopted. Because I think the real issue here will be not just the 
erosion of the respect of the institution over time, but there will be 
demands from the outside. There will be a legitimate question posed by 
the American people as to whether this House can, in fact, police 
itself, whether we have the capacity to maintain high standards.
  If we abrogate that responsibility, not only do we do damage, in my 
opinion, to this institution, but we chip away at the health of 
American democracy. People will begin to believe the worst. What is 
happening in that institution? Are there backroom deals going on? Or is 
the partisanship so absolutely venomous at this point in time that they 
cannot work together and there should be some sort of independent group 
or independent commission that polices those Members of Congress? That 
would indeed be unfortunate, in my judgment.
  Mr. CARDIN. Mr. Speaker, will the gentleman yield?
  Mr. MOLLOHAN. I yield to the gentleman from Maryland.
  Mr. CARDIN. Mr. Speaker, I appreciate the gentleman from 
Massachusetts' comments, and I agree completely with his point. The 
point that all of us who have served on the Committee on Standards of 
Official Conduct and have gone through investigations understand that 
when we meet in that investigative setting when we have a specific 
matter before us and when we start looking at the rules of the House 
and the precedence of the House, we do not get into a disagreement 
along party lines as to what the rules are and what the expected 
conduct is. We then look at the facts, and once again the facts become 
the facts, and we do not divide along party lines as to what the facts 
are and how we apply them to the rules, and generally, as the gentleman 
from California (Mr. Berman) pointed out, in an overwhelming number of 
cases we reach consensus, unanimous judgment, as to what the rules of 
the House applied to the facts require us to do.
  And even when we reach disagreement, it is not along party lines. 
Sometimes there is disagreement on the interpretation of the rules or 
the facts, but they are not along party lines.
  In every case that I can ever recall in the Committee on Standards of 
Official Conduct, that is exactly how we proceeded and reached 
judgment, because of the point that the gentleman said, the seriousness 
of our work and the credibility of this institution and the confidence 
of this institution is very much affected by it.
  I think what is extremely disappointing is that we now have rules 
changes that were dictated in a very partisan manner that make it 
impossible for the committee to function. This is one of the few 
bastions of nonpartisan activity within the Congress. Now that is 
unable to operate because of the way the rules changes were made, and I 
just thank the gentleman for underscoring how important this matter is.
  Mr. DELAHUNT. Mr. Speaker, if the gentleman will continue to yield, 
if I may just pose a question, again there is a wealth of history that 
I am looking at right here in terms of the issue of ethical standards 
in this particular institution. Has there ever been before a moment in 
terms of ethical standards where a unilateral initiative has been 
imposed on the body without a collaborative effort, without 
consultation?
  Mr. MOLLOHAN. Mr. Speaker, reclaiming my time, I think that is 
exactly where we are today. There, in fact, has not been such a moment, 
and we have this process that is offensive in and of itself, that is a 
serious break with all tradition with the Committee on Standards of 
Official Conduct when its formation was conducted in a bipartisan 
manner. The subsequent rules changes, as both the gentleman from 
Maryland (Mr. Cardin) and the gentleman from California (Mr. Berman) 
have described in considerable detail because they were involved, all 
those processes were bipartisan. They brought us bipartisan rules, and 
they brought us rules that were voted on by the full House of 
Representatives as a bipartisan package. The process was not offensive. 
Neither were the rules offensive.
  In this case, the process breaks with that tradition. It is patently 
partisan. The most partisan vote we have in the House of Representative 
is a party-line vote, and that is a vote that attempts to impose these 
rules upon the Committee on Standards of Official Conduct, a party-line 
vote. All the Republicans voting for them; all the Democrats voting 
against them. So the process is tainted.
  So it is no surprise that these three rules are extremely offensive. 
If they had been fashioned in a bipartisan process, they would have 
been vetted. They would have been challenged. They have would have been 
compromised in that task force format, and they would not have come to 
the body flawed as they were.
  When we undertake a partisan process, we cannot create a bipartisan 
entity. It is definitionally impossible to do.
  So now we have three rules. We have had to suffer under a partisan 
process established to affect a bipartisan committee. But we also have 
three rules that are terribly flawed.
  And the bottom line here is tonight and the message that we want to 
get across to our colleagues and to the whole Nation is that if we are 
going to have a bipartisan Committee on Standards of Official Conduct, 
we have to have a bipartisan process to fashion the rules and to 
constitute the committee, and we also have to challenge these three 
rules that are brought to us in a partisan process.
  Automatic dismissal of a complaint after 45 days is extremely 
mischievous to the process. As all of my colleagues have pointed out, 
rules should exist to

[[Page H1880]]

help people do the right thing. An automatic dismissal rule in 45 days 
incentivizes Members in a highly charged partisan institution to sit on 
their hands for 45 days and let this responsibility pass to have an 
automatic. The same sort of undermining is taking place with regard to 
a rule that will automatically allow an accused to get their lawyer to 
represent all of the witnesses that the committee is trying to 
investigate.
  The gentleman from Massachusetts was a prosecutor for 25 years or 
however long it was, and the gentleman, I know, understands how 
mischievous that would be to an investigative process.
  Mr. DELAHUNT. Mr. Speaker, if the gentleman will continue to yield, 
to be perfectly candid, I think a lawyer who would take on the 
assignment of multiple representation could very well find him or 
herself in an ethical dilemma. Because, clearly, not all witnesses have 
the same interests. So for an attorney to do that really has ethical 
overtones as well. It just does not make any sense.
  In fact, one of the recommendations that came out of the subpanel 
that I served on was for the House to consider the sequestration of 
witnesses so that the fact-finding process itself would not be colored 
by conversations among staff and Members. And, as the gentleman knows, 
it was a unanimous report, and it was adopted unanimously by the House.
  I hear sometimes comments about lack of due process. That is a whole 
other issue, but I am very proud of that product, as I know my three 
colleagues were on the subpanel, and not once did an individual's name 
ever appear in print. Not once. There was not a leak because each of us 
understood the significance and the importance of taking this 
unpleasant task on in a role that reflected well on the House and 
reflected the integrity of this institution.
  Mr. MOLLOHAN. Mr. Speaker, the gentleman makes the point that in the 
case that he worked on, and it is unnecessary to mention it by name, 
but that his investigative subcommittee, he and his colleagues, did an 
excellent job. And one of the reasons they did is because they were 
able to keep that information between the witnesses apart. They were 
not able to have coordination. Their testimony was not contaminated in 
that way. And that is why they came up with such a clean, hard 
decision, which was adopted unanimously by the investigative 
subcommittee and was adopted unanimously by the full committee.
  Mr. DELAHUNT. And we never could have done it, Mr. Speaker, in 45 
days. Never.
  Mr. MOLLOHAN. Mr. Speaker, I ask the gentleman, how long did it take 
them to come with that investigation?
  Mr. DELAHUNT. I think it was in the neighborhood of 6 months, and 
there were multiple, multiple meetings.

                              {time}  2100

  Mr. CARDIN. I cannot think of any case that we ever had that could 
have been handled in 45 days. I am just trying to think about the time 
period for answer, the time period for staff review, the time period 
just to verify basic simple facts. Even in the simplest case, I do not 
know of any case that we could have handled in a professional manner 
within a 45-day period.
  Mr. MOLLOHAN. Mr. Speaker, reclaiming my time, exactly. Under the new 
rules, to be perfectly clear about it, the 45-day period would toll 
once an investigative subcommittee were appointed. But the point here 
is that the effort of any of those who did not want to have to fulfill 
their responsibilities and actually consider the merits of the case, 
anyone, any party, any five members who had that attitude could simply 
avoid the question of creating an investigative subcommittee and easily 
do it. There are two clocks that run when a complaint is filed, a 45-
day clock and a 30-day clock to answer it; and then you would have 15 
days to actually dispose of the matter
  Mr. BERMAN. If the gentleman would yield further, a tremendous amount 
goes on before it ever gets to a recommendation by the Chair and the 
ranking member to the full committee to create the investigative 
subcommittee.
  I think of cases where staff had to go to county courthouses to 
review deeds and a whole series of public records to decide if there 
was any basis for moving forward. It is true that the staff at that 
point does not have the power of subpoena and does not have the power 
to get records that are not in the public domain, but they do have the 
power to informally talk to people who would have information about 
this, to look at public records.
  You cannot do this in 45 days. You cannot come to a serious 
recommendation that you are going to make to the full committee, that 
both the Chair and the ranking member can feel comfortable that they 
can go to the full committee and say we think now is the time to create 
the investigative subcommittee, unless you have that preliminary work. 
Otherwise, you just might as well send everything to an investigative 
subcommittee.
  The flip side of an automatic dismissal is every charge gets 
investigated, with subpoenas and depositions and seizing of records 
through warrants, which would be a terrible thing for the due process 
rights of Members. So we are messing with something we should not be 
messing with here, and it is going to hurt the institution.
  By the way, if this were not part of the larger rules package on an 
opening day, a very small part in terms of the substantive works, I 
believe there are Members on the other side of the aisle who would have 
supported the position we are now taking on the substance of these 
rules; and I know there were members of the committee that would have 
fully, both present and former, understood how dangerous these rule 
changes were.
  Mr. MOLLOHAN. Mr. Speaker, reclaiming my time, that opportunity 
exists with H. Res. 131, the resolution that I introduced on March 1, 
that is now pending before the Committee on Rules. Last week I wrote 
the distinguished chairman of the Committee on Rules and respectfully 
requested an opportunity to testify before the Committee on Rules in 
support of H. Res. 131, to raise some of the questions that have been 
so eloquently and capably discussed here tonight.
  I think the gentleman's point is very well taken: the rules package 
was an omnibus rules package. These are three ethics rules embedded in 
the rules package, so it did not get the kind of visibility, the kind 
of attention that it would get if H. Res. 131 were brought to the floor 
of the House. Then we would have an opportunity to fully debate all of 
these issues and, more importantly, our colleagues, both Democrat and 
Republican, would have a chance to vote on these discrete rules, 
understanding how important they are to ensuring a credible ethics 
process and restoring it to a bipartisan basis.
  Mr. CARDIN. Mr. Speaker, if the gentleman will yield further, just as 
a final comment in answer to the gentleman from Massachusetts (Mr. 
Delahunt), I do not know of it ever being done the way these rules 
changes were made. We have always had a deliberative process for the 
reasons the gentleman from California (Mr. Berman) and the gentleman 
from West Virginia (Mr. Mollohan) pointed out, so we have a chance to 
understand the ramifications of these changes. We have never had 
significant changes to the ethics rules done on the opening day by the 
majority without working with the minority.
  Mr. BERMAN. If the gentleman would yield on that, the irony was at 
the time of the greatest anger about committee action, which was the 
case the gentleman participated in dealing with a sitting Speaker of 
the House, the response was not then to change every rule that bothered 
him. It was to create a bipartisan task force to look at the rules, to 
look at it in the context of that case, to see if anything should be 
changed. That is the appropriate response if you are upset with the way 
some particular rule seems to be working at the present time.
  Mr. DELAHUNT. Mr. Speaker, if the gentleman will continue to yield, I 
would say to the gentleman from Maryland (Mr. Cardin), maybe it is time 
for you again and the gentleman from West Virginia (Mr. Mollohan) and 
the gentleman from California (Mr. Berman) to serve on a bipartisan 
task force with that in mind.
  Mr. MOLLOHAN. Mr. Speaker, reclaiming my time, let me thank you 
tonight for overseeing our Special Order. I express special 
appreciation to

[[Page H1881]]

these three distinguished Members of the House, my colleagues, for 
their participation.
  I think this has been an extremely reasoned, hopefully informative 
and persuasive prayer to the Republican leadership to look at this 
issue, to take a second look at it, be impressed by the fact that we 
are not operating in a bipartisan process, and we must if we are going 
to have a credible Committee on Standards of Official Conduct, and then 
to look substantively at these three rules, how they undermine, create 
mischief, make it impossible, really, to conduct the oversight, the 
ethical oversight of the House of Representatives in a way that will 
make the institution proud and make us credible to the American people.

                          ____________________