Congressional Record, Volume 151 Issue 42 (Tuesday, April 12, 2005)

[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.

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