[Congressional Record Volume 154, Number 41 (Tuesday, March 11, 2008)]
[House]
[Pages H1515-H1524]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             ESTABLISHING AN OFFICE OF CONGRESSIONAL ETHICS

  Ms. SUTTON. Mr. Speaker, by direction of the Committee on Rules, I 
call up House Resolution 1031 and ask for its immediate consideration
  The Clerk read the resolution, as follows:

                              H. Res. 1031

       Resolved, That House Resolution 895, amended by the 
     amendment printed in the report of the Committee on Rules 
     accompanying this resolution, is hereby adopted.

  The SPEAKER pro tempore. The gentlewoman from Ohio is recognized for 
1 hour.
  Ms. SUTTON. Mr. Speaker, for the purpose of debate only, I yield the 
customary 30 minutes to the gentleman from California (Mr. Dreier). All 
time yielded during consideration of the rule is for debate only.


                             General Leave

  Ms. SUTTON. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days within which to revise and extend their remarks 
and to insert extraneous materials into the Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentlewoman from Ohio?
  There was no objection.


                        Parliamentary Inquiries

  Mr. ABERCROMBIE. Mr. Speaker, parliamentary inquiry.
  The SPEAKER pro tempore. The gentleman will state his parliamentary 
inquiry.
  Mr. ABERCROMBIE. Will time be allowed on the Democratic side of the 
aisle in opposition?
  The SPEAKER pro tempore. Each of the managers controls 30 minutes.
  Mr. ABERCROMBIE. Will time be allotted on the Democratic side of the 
aisle for opposition?
  The SPEAKER pro tempore. The time is not allocated on the basis of 
the attitude of Members towards the measure. The gentlewoman from Ohio

[[Page H1516]]

will control the time on her side of the aisle.
  Mr. ABERCROMBIE. Parliamentary inquiry.
  The SPEAKER pro tempore. The gentleman is recognized.
  Mr. ABERCROMBIE. Can the Speaker inquire of the gentlelady whether 
time will be given in opposition on the Democratic side of the aisle?
  The SPEAKER pro tempore. The gentleman may ask the manager for time.
  Ms. SUTTON. Mr. Speaker, I yield myself such time as I may consume.
  Mr. ABERCROMBIE. Mr. Speaker, I am under the impression that a 
question has been directed to the gentlelady.
  The SPEAKER pro tempore. Does the gentlewoman yield for a 
parliamentary inquiry?
  Ms. SUTTON. If there is time available, we will entertain that.
  Mr. ABERCROMBIE. That's my question, Mr. Speaker.
  The SPEAKER pro tempore. Will the gentlewoman yield for a 
parliamentary inquiry to the Chair?
  Ms. SUTTON. Yes.
  Mr. ABERCROMBIE. Will time be made available on the Democratic side 
in opposition?
  Ms. SUTTON. If there is time remaining that hasn't already been 
assigned or requested, we will certainly not preclude opposition.
  Mr. ABERCROMBIE. Does any time remain?
  Ms. SUTTON. We're working on the list.
  Mr. ABERCROMBIE. Mr. Speaker, that's nonresponsive. Mr. Speaker, I 
have permission to ask, and I'm trying to get an answer. That's 
certainly fair. Will there be time or not?
  Ms. SUTTON. Mr. Speaker, I can't guarantee the time.
  Mr. ABERCROMBIE. And this is about ethics.
  Ms. SUTTON. Mr. Speaker, I reclaim my time.
  The SPEAKER pro tempore. The gentlewoman from Ohio has the time.
  Mr. ABERCROMBIE. Mr. Speaker, parliamentary inquiry.
  The SPEAKER pro tempore. The gentleman is recognized.
  Mr. ABERCROMBIE. I want to make sure I understand.
  The SPEAKER pro tempore. Pardon the Chair, The gentleman is not 
recognized. The gentlewoman has reclaimed her time and does not yield 
for a parliamentary inquiry.
  Mr. ABERCROMBIE. Will the gentlelady yield?
  Ms. SUTTON. Mr. Speaker, I reclaim my time.
  The SPEAKER pro tempore. The gentlewoman does not yield. The 
gentlewoman is recognized.
  Ms. SUTTON. Mr. Speaker, H. Res. 1031 provides for the adoption of H. 
Res. 895, which establishes an Office of Congressional Ethics in the 
House of Representatives. I rise in support of this important rule that 
will allow us to enact one of the most important ethics reforms this 
House has ever seen.
  Mr. Speaker, the issue of ethics and accountability has long been on 
the minds of the people that I represent. During my campaign to become 
a Member of this esteemed body, everywhere I went, people asked about 
it. They believed and, Mr. Speaker, they were absolutely right, that 
the corruption and unfair influence that existed in past Congresses was 
having an effect on our policies, deflecting us from making progress on 
issues important to them and families across this great Nation.
  So last year, Mr. Speaker, on my first day in office representing the 
people of Ohio's 13th District, I was very proud to stand on the floor 
of the House of Representatives to support the new ethics and lobbying 
reforms which have now become law. We ended the K Street Project and 
cut off the gifts and the perks used far too often by lobbyists to woo 
lawmakers. The historic rules package we passed was extraordinary in 
its scope and breadth. But it was only the beginning of actions 
necessary to restore the public trust and to cut off the abuses of 
recent years.
  Mr. Speaker, trust is a fragile thing. It's difficult to win and easy 
to lose. It finds its hold on promises kept and honesty sustained and 
unquestionable integrity.
  Many of us, Mr. Speaker, came to this new Congress as new Members 
dedicated to acting to change the way business was being conducted. In 
May of last year, I stood side by side with my freshman Democratic 
colleagues, some of whom we'll hear from today, calling for the 
creation of a nonpartisan and independent body that could initiate and 
examine ethics investigations. And today, we are acting to make this 
change happen.
  With this bill, we continue the mission of pushing back against 
corruption. We are forging ahead to restore trust and confidence in 
this great institution.
  Mr. Speaker, House Resolution 895 will help end the culture and 
abuses that have hurt the American people, both in policy and in 
spirit. This legislation is the culmination of hard work of 
Representative Capuano and the special task force on ethics 
enforcement. He deserves our appreciation.
  Speaker Pelosi and Majority Leader Hoyer also deserve praise for 
their tireless efforts to move this issue forward, sometimes in 
contentious times. The independent ethics panel will help cure many of 
the inherent structural flaws that restrain our present ethics 
structure by eliminating the conflicts of interest that can be found in 
our current system. The formation of this office is the next step in 
our mission to repair the damage to the public trust caused by 
corruption and to ensure that any potential abuses in the future will 
be identified and addressed.
  And it's important to emphasize, Mr. Speaker, that our bill 
establishes an independent, bipartisan office of congressional ethics. 
The words ``independent'' and ``bipartisan'' are worth stressing.
  We may hear today about the desire of some who want to delay action 
on this important measure, but the American people have waited and 
waited, and this bill has been a long time in the making. This bill was 
made necessary by abuses of the past that have robbed the public of 
their faith and trust in this institution, and this new bill was made 
possible by the commitment of this new Congress to ensure that we will 
do what it takes to prevent the excesses and abuses of the past and 
hold those who violate the rules accountable.
  Safeguarding the trust of the American people is not a part-time job. 
The integrity of this institution and the trust of the American people 
must be paramount. And make no mistake, we take this step not only to 
restore the public trust, we must take this step to ensure that we will 
be an institution worthy of that trust. That's why we're acting today. 
The American people are waiting. I urge my colleagues on both sides of 
the aisle to join in support of this resolution.
  Mr. Speaker, I reserve the balance of my time.
  Mr. DREIER. Mr. Speaker, I thank my friend for yielding me the 
customary 30 minutes, and with that, I yield myself such time as I 
might consume.
  (Mr. DREIER asked and was given permission to revise and extend his 
remarks.)
  Mr. DREIER. Mr. Speaker, as legislators there can be no issue of more 
fundamental importance than the strength and the integrity of our 
institution. None of our work here, none of our legislative or 
political priorities matter if we don't have the integrity and the 
trust of the people that are necessary to be an effective body.
  The Founders of our Republic, the authors of our Constitution, were 
well aware of the inherent challenges in making government fully 
accountable. They understood human nature and the pitfalls that go with 
investing power in individuals.

                              {time}  1930

  After all, Madison famously wrote in Federalist 51: ``But what is 
government itself but the greatest of all reflections on human nature? 
If men were angels, no government would be necessary. If angels were to 
govern men, neither external nor internal controls on government would 
be necessary. In framing a government which is to be administered by 
men over men, the great difficulty lies in this: You must first enable 
the government to control the governed; and in the next place oblige it 
to control itself.'' Those were the brilliant words of the Father of 
our Constitution.
  Our Founders recognized, Mr. Speaker, these challenges and knew the 
answer was to empower institutions rather than individuals. They knew 
that

[[Page H1517]]

the House of Representatives, like all government institutions, must 
have the authority and the imperative to preserve its integrity and to 
punish those individual Members who would tarnish its reputation, 
diminish its stature, and erode its ability to serve as the 
representative of the people.
  They gave explicit constitutional authority to do so. As we all know, 
Article II, section V, clause 2 of the Constitution directs Congress to 
``determine the rules of its proceedings, punish its members for 
disorderly behavior, and, with the concurrence of two-thirds, expel a 
member.''
  Ultimately, Mr. Speaker, they knew that the most important guarantor 
of accountable and trustworthy government is democracy itself. No 
individual Member of Congress ever acts with impunity because we are 
judged every 2 years by the people who sent us here. And, of course, no 
one is above the law.
  As we speak, there are former colleagues of ours serving time in jail 
for their abuses of the offices that we hold. Outside watchdog groups, 
the media, individual voters and our criminal justice system are all 
working, and working quite effectively, to shed some light on this body 
and ensure Members are held accountable.
  Externally, Mr. Speaker, the pressure is on. The problem is how to 
deal with accountability internally; how do we fulfill our 
constitutional imperative to police ourselves and preserve the 
integrity of this body. Our current process is broken. It's hamstrung 
by two key problems: partisan deadlock and a lack of transparency. This 
a serious challenge. It is so serious that some Members of this body 
apparently feel that we are not up to the job.
  A task force was established to consider the question of whether we 
should just throw up our hands, concede that we are not capable of 
fulfilling our constitutional duty to police ourselves and set up 
another body to do it for us.
  This was a dubious task to begin with, but I believe that it was 
tackled with all sincerity and commitment. Mr. Capuano and Mr. Smith 
took on the role assigned to them and very carefully considered the 
question. But the breakdown came when it was time to make its 
recommendation.
  The proposal put forth by Mr. Capuano, which ignores the real problem 
of a broken, internal ethics process, and in fact exacerbates the 
problem by adding a new partisan outside body, was not endorsed by his 
Republican counterpart. It met immediate criticism on both sides of the 
aisle. The Democratic leadership had no choice but to pull it.
  Now, Mr. Smith offered a very thoughtful alternative, and we were 
told that consideration of Mr. Capuano's proposal was being postponed 
in order to work with Mr. Smith and consider his suggestion. That 
bipartisan negotiation, to my knowledge, Mr. Speaker, never took place. 
Mr. Wamp and Mr. Hill also submitted a proposal, a bipartisan proposal; 
but it was disregarded as well. Instead, we are back here confronting 
essentially the same deeply flawed proposal that was yanked from the 
schedule a couple of weeks ago.
  They may have put lipstick on that pig, but it is still a pig, Mr. 
Speaker. This proposal still sets the stage for partisan witch hunts. 
It may take bipartisan support to initiate investigations, but they can 
be advanced purely on partisan lines. So at the very beginning, when 
little information is known, bipartisanship is called for. But once the 
process begins, the flood gates for partisan attacks are wide open. The 
minor modifications made to the original proposal do nothing more than 
attempt to obfuscate the utterly partisan nature of the proposed Office 
of Congressional Ethics.
  As we have seen countless times under the Democratic leadership, a 
bad proposal demands a draconian process to get it through. And the 
worse the proposal is, the worse the process needs to be. We've seen an 
explosion of closed rules in this Congress. And what does a closed rule 
do? It severely restricts debate and shuts out all amendments. This has 
become the go-to rule for this new majority. And that's as bad as it 
could possibly get. Right? There is nothing worse that they could do 
than to shut out all amendments and alternatives. Right?
  I used to think so until this point, until we saw this rule. This one 
absolutely takes the cake, Mr. Speaker. In case you missed it when the 
Clerk read it, and allow me to repeat it, pay attention or you will 
miss it again: ``Resolved, that House Resolution 895, as amended by the 
amendment printed in the report of the Committee on Rules accompanying 
this resolution, is hereby adopted.'' That's what the resolution says. 
This rule actually provides for passage of the underlying proposal 
without so much as one single word of debate on this proposal. They 
simply declare it into existence. No debate, no vote. A closed rule may 
shut out dissent, but this rule eliminates deliberation altogether.
  Before this Congress even began, our distinguished Speaker, my fellow 
Californian, committed to ``the most honest and open government,'' has 
managed to stoop to unprecedented lows in closed, inaccessible 
government that operates purely on back-room deals with no place for 
open, honest debate. And for what purpose? To ram through a policy so 
bad it has been widely and heavily criticized by both Democrats and 
Republicans. A policy to turn our ethics process into nothing more than 
cheap partisan games and a policy of abandoning our constitutional 
imperative to police ourselves and ensure the integrity of this great 
institution. This is terrible policy, brought to us by a singularly 
terrible rule.
  I urge my colleagues to reject the rule and demand real ethics reform 
that actually addresses the root problems in our current system and 
accepts responsibility, as the Constitution directs us to, for our own 
ethics process.
  With that, I reserve the balance of my time.
  Ms. SUTTON. Mr. Speaker, I would like to state again, as I did a few 
moments ago, that we are going to hear, evidently today, about the 
desire of some to delay action on this important measure. And I just 
restate that the American people have waited and waited. And this bill 
has been a long time in the making.
  I yield 6 minutes to the distinguished gentleman from Massachusetts 
(Mr. Capuano), the chairman of the Special Task Force on Ethics 
Enforcement.
  Mr. CAPUANO. Mr. Speaker, I actually find very little in Mr. Dreier's 
comments I disagree with. I agree with almost everything he has said, 
and I commend him for that very thoughtful speech.
  Mr. Speaker, before I comment on the specifics, I'd also like to 
thank the members of the task force, especially Mr. Smith, who was the 
ranking member for Republicans. It was a great opportunity to become a 
friend of another Member. We did disagree in the end, but I found it to 
be a very thoughtful, fruitful, and enjoyable experience.
  I also want to thank other members of the committee: Mr. Price, Mr. 
Scott, Ms. McCollum, Mr. Meehan before he left, Mr. Hobson, Mr. Camp, 
and Mr. Tiahrt. I thought we had some great meetings, and it was a 
pleasure to me to engage in this endeavor.
  I also want to thank the Members of the freshman class of 2006. 
They're the ones who really kept the pressure on us to try to fix our 
ethics rules. They came here on the backs of public discontent with our 
actions, and they have kept our feet to the fire. I thank them for 
that.
  I also want to thank the many people that helped us walk through 
this. There are many people whom I will list in my extension of remarks 
at a later time because there are too many of them. I do want to point 
out one staff member, in particular my own, Christina Tsafoulias, who 
worked countless hours trying to get through this. I want to thank her 
publicly for that.
  On the specifics, again I think I agree with most everything Mr. 
Dreier said. This is really all about public trust, but the point that 
seems to be missed is the public does not trust us on ethics issues at 
this point. Maybe that's fair. Maybe that's unfair. Maybe it's based on 
reality. Maybe it's based on perception. But it is a fact. They do not 
trust us. They don't trust us for many different reasons. As I see it, 
I can point to two different issues in particular: the perception of 
the good-ol'-boy network. Now, maybe that's not fair, but it's 
certainly what our constituents think. They think we are all here 
protecting each other. They think that we operate beyond closed doors 
and smoke-filled rooms to make sure that

[[Page H1518]]

no bad things get said about our colleagues. I don't think that is 
true, but that's certainly the perception. When people don't have trust 
in the system, they don't have trust in us, and I think that's an 
important thing to address.
  The other part of it, as was already pointed out, is transparency, or 
the lack thereof. That encourages people to think that the good-ol'-boy 
network is all that we rely on. As far as partisanship, I totally 
agree. Any system that results in partisanship on ethics matters is 
unsuccessful. But partisanship has two points: yes, there is 
partisanship to initiate witch hunts, and that is a concern, I believe, 
this proposal addresses that by requiring joint appointments and by 
requiring one Democratic appointment and one Republican appointment to 
initiate a review. It totally undermines any legitimate concerns about 
partisanship witch hunts.
  But the other side of the coin that nobody here wants to talk about 
is the potential for partisan stonewalling, which we have suffered in 
this House in the past where one party simply says, You cannot look at 
our Member. Period. End of discussion. And if you do, we will remove 
Members from the Ethics Committee who look at that Member, which has 
happened in this House, and everybody knows it.
  And to think that partisanship is only a one-sided witch hunt is a 
mistake. Partisanship is also stonewalling. It's also protecting our 
fellow colleagues who may or may not have done something wrong simply 
because they come from the same party as we do. That's just as wrong as 
partisan witch hunts, and I believe this proposal addresses that as 
well.
  I also want to comment on the two proposals that were dropped on us 
lately. One of them had been in one form or another for a while; but 
both of them, in their final form, were dropped on us lately. I will 
simply tell you that, yes, we did look at them; and I have an opinion 
here which I will submit to the Record from the Congressional Research 
Service and one from the House counsel that states by bringing non-
Members into a Member-oriented item to have official votes on matters 
in this House is likely to be unconstitutional.
  Now, I know that some people don't want to hear it, and certainly it 
won't be definitive until the Supreme Court were ever to act on it, but 
there is all of these constitutional questions on everything we do. I, 
for one, am a lawyer. I try to figure out how unconstitutional an issue 
might be; and if the answer is it's more likely to be unconstitutional 
than not, I won't do it. If the answer is I think it's constitutional, 
you try it. If it gets knocked down in court later on, so be it.
  So these two proposals, according to two independent agencies we 
could get direct answers on quickly, believe that it's 
unconstitutional.
  As far as the rule goes, I have had a year's worth of debate, and I 
would have welcomed anybody to come to any of our meetings and 
participated at any time they wanted to have the hours-on-hours of 
discussion. At the same time, this is a pretty simple proposal. I know 
some people don't like the concept of an independent entity having 
something to do with our ethics process. I respect that opinion. I 
disagree with it, but I respect it. It is a fair concern. At the same 
time, that's what this is.
  An up-or-down vote on that, I think, is a fair thing for the American 
people to let them know how we feel about this concept.
  The material I referred to previously I will insert into the Record 
at this point.


                               Congressional Research Service,

                                    Washington, DC, March 4, 2008.


                               Memorandum

     Subject: Permissibility of Non-Members Being Appointed to a 
         Committee of the House of Representatives.
     From: Jack Maskell, Legislative Attorney, American Law 
         Division.

       This memorandum responds to requests from congressional 
     offices for a brief overview of the permissibility and 
     constitutionality of allowing the House to appoint non-
     Members, that is, persons who are not current Members, 
     Delegates, or Resident Commissioner, to a committee of the 
     House of Representatives, with full voting privileges in 
     committee. Although the House of Representatives has 
     extensive authority and discretion concerning its own 
     internal proceedings and rules, the Constitution requires 
     that Members of the House be elected every two years by the 
     people of the several states, and thus a rule which would 
     allow persons who are not elected to the House to carry out 
     the constitutional functions of the House of Representatives 
     through full voting membership on one of its committees would 
     raise constitutional questions.
       Each House of Congress generally has broad authority to 
     determine its own internal, procedural rules, and to 
     establish those procedures and internal structures within the 
     body to assist in implementing the institution's 
     constitutional duties. Under Article I, Section 5, cl. 2 of 
     the Constitution, which grants to each House the express 
     authority to ``determine the Rules of its Proceedings * * 
     *,'' the institution of the House, within the framework of 
     express constitutional requirements, has broad discretion 
     concerning its own internal operations and functionings as 
     befits a legislative assembly which is an independent, co-
     equal branch of government under our tripartite governmental 
     system of separated powers. Under this authority, the courts 
     have traditionally given deference to the explication, 
     application, and definition of internal procedural matters in 
     both Houses of Congress. As noted by the Supreme Court in 
     United States v. Ballin: ``The question, therefore, is as to 
     the validity of this rule, and not what methods the Speaker 
     may of his own motion resort to * * * Neither do the 
     advantages or disadvantages, the wisdom or folly, of such a 
     rule present any matters for judicial consideration. With the 
     courts the question is only one of power. The Constitution 
     empowers each house to determine its rules of proceedings. It 
     may not by its rules ignore constitutional restraints or 
     violate fundamental rights, and there should be a reasonable 
     relation between the mode or method of proceeding established 
     by the rule and the result which is sought to be attained. 
     But within these limitations all matters of method are open 
     to the determination of the house, and it is no impeachment 
     of the rule to say that some other way would be better, more 
     accurate or even more just. It is no objection to the 
     validity of a rule that a different one has been prescribed 
     and in force for a length of time. The power to make rules is 
     not one which once exercised is exhausted. It is a continuous 
     power, always subject to be exercised by the house, and 
     within the limitations suggested, absolute and beyond the 
     challenge of any other body or tribunal.
       When there are interpretative and definitional ``gaps'' in 
     language of constitutional provisions, for example, the 
     courts have allowed each House to fill in the details of such 
     constitutional provisions regarding its internal procedures. 
     As noted by the Supreme Court in the case regarding the 
     procedure that the Senate adopted to carry out its 
     constitutional duties to ``try'' impeachment cases: ``As a 
     rule the Constitution speaks in general terms, leaving 
     Congress to deal with subsidiary matters of detail as the 
     public interests and changing conditions may require * * *.'' 
     The Supreme Court in Nixon v. United States, thus deferred to 
     the institution of the Senate in its determination under its 
     own rules of proceeding as to the method that the Senate uses 
     to ``try,'' as required by the Constitution, an impeachment 
     of a federal judge. Specifically, the Court deferred to the 
     judgment of the Senate to use only a small portion of the 
     entire membership of the Senate body, in the form of a 
     committee, to actually hear and take the evidentiary 
     testimony (and then to report to the full Senate which votes 
     to convict or not on the impeachment), since there was a 
     ``textual commitment to a coordinate political department'' 
     of the matter in the Constitution.
       The courts have thus recognized the authority of 
     committees, and have allowed the committees broad 
     investigative and oversight authority, for example, because 
     committees of the House act as the House for those purposes 
     that are expressly delegated to those committees by the Rules 
     of the House (and have only those authorities and powers that 
     are in fact delegated from the full institution). The Supreme 
     Court has recognized the House's ``utilization of its 
     committees'' to carry out a ``legislative function belonging 
     to it under the Constitution.'' Since the committees act as 
     and on behalf of the House pursuant to its Rules, are 
     creatures of the House, and are in legal and actual essence a 
     division or sub-entity of the entire institution (carrying 
     out and exercising the constitutional functions of that 
     institution delegated to them), there is a very strong 
     indication that such committees exercising such functions may 
     generally be composed only of Members of the House.
       Article I, Section 2 of the Constitution provides that 
     Members of the House must be elected every two years by the 
     people of the several States. Membership in the House, and by 
     extension on committees acting for the House, would thus 
     appear to require that a Member be elected by the people of 
     the several states. In a brief review of legal sources, we 
     have not discovered any precedent where non-Members of the 
     House have been members of a House committee with full 
     privileges and votes similar to any Member of the House, and 
     thus we have found no judicial decisions and rulings on its 
     permissibility, other than in the case of the elected 
     delegates or resident commissioners in the House. In Michel 
     v. Anderson, the United States Court of Appeals, District of 
     Columbia Circuit, found that there exists what one might 
     describe as an ``historical exception'' to the general 
     constitutional proposition that the House must only be made 
     up of Members elected from the several states, and that 
     exception, recognized in law from the

[[Page H1519]]

     very first Congress (1 Stat. 50, 52 (1789)), was that people 
     in territories and districts under the jurisdiction of the 
     United States could have a non-voting delegate or 
     commissioner in the House (that is, that such delegate may 
     not vote on legislation on the floor) to ``represent'' them: 
     ``The territorial delegates, representing those persons in 
     geographic areas not admitted as states, then, always have 
     been perceived as would-be congressmen who could be 
     authorized to take part in the internal affairs of the House 
     without being thought to encroach on the privileges of 
     membership.''
       Such non-voting representatives, in the form of elected 
     delegates from the territories and districts not admitted as 
     states, have in practice sat on House committees, and could, 
     according to the court, if authorized by the House, vote in 
     the ``Committee of the Whole'' (but only if their vote was 
     not the determinative vote), but could not vote on 
     legislation on the floor.
       However, the court in Michel v. Anderson expressly noted 
     that this historical exception for territorial delegates was 
     limited, and noted, in dicta, that such exception and 
     permission for territorial delegates to participate in 
     certain internal matters in the House could not be extended 
     or applied to allow the House to adopt a rule putting other 
     non-Members on House committees: ``The appellees, for their 
     part, forthrightly concede that the House could not permit 
     persons other than the traditional delegates to perform the 
     role currently played by the delegates. It would, thus, not 
     be open to the House to authorize by rule, say, the mayors of 
     the 100 largest cities to serve and vote on House 
     committees.''
       In the case of allowing persons not elected as Members of 
     the House to be full voting members of a committee of the 
     House, such as in certain proposals concerning the House 
     Committee on Standards of Official Conduct, the precedent of 
     allowing territorial delegates to participate in certain 
     internal processes of the House, including voting in 
     committee, may be distinguished on three basic grounds. 
     First, there is historical precedent recognized from the 
     first Congress for the people of territories and districts, 
     not recognized as states, to have some limited, non-voting 
     representation in the House. In the proposals seeking to add 
     non-Members to the standing House Committee on Standards of 
     Official Conduct, no such purpose of representation of 
     persons in geographic regions under the jurisdiction of the 
     United States is provided, intended, or accomplished. 
     Secondly, as discussed above, the court noted in its opinion 
     that this historical permission for territorial delegates, 
     provided by law, to participate in certain House proceedings, 
     was a limited exception, and would not open the House to 
     ``authorize by rule'' the addition of other persons (such as 
     mayors of cities) ``to serve and vote on House committees.'' 
     Finally, the court noted that the voting of a territorial 
     delegate, even in a House committee or in the ``Committee of 
     the Whole'' (with the revote provision), is ``largely 
     symbolic'' because the vote could not immediately affect 
     legislation, such as a vote on legislation on the House floor 
     would. The duties and authority of the House Committee on 
     Standards of Official Conduct to both recommend the 
     discipline of a Member directly to the House, and to issue a 
     ``letter of reproval'' on its own accord, upon the requisite 
     number of the votes of its members, may be seen as part of 
     the express constitutional authority of the House under 
     Article I, Section 5, cl. 2, to ``punish its Members for 
     disorderly Behaviour.'' As such, these activities might be 
     considered part of the direct and express constitutional 
     function of the House, delegated to and exercised in some 
     part by one of its committees made up of its own Members, 
     and thus something more than merely the ``symbolic act'' 
     which was the subject of the Michel v. Anderson case.
       A committee of the House, such as the House Committee on 
     Standards of Official Conduct, could clearly employ staff to 
     assist the committee in carrying out its functions, and could 
     use an ``outside counsel,'' an advisory committee, or ``task 
     force'' made up of non-Members (and even including on its 
     membership some sitting House Members) to assist the 
     committee in its investigative work, fact-finding, and even 
     recommending to the Committee that it take certain action on 
     matters. However, it may be argued that under existing 
     decisions and precedent, allowing persons who are not elected 
     as Members (or as delegates representing persons under the 
     jurisdiction of the United States in geographic regions that 
     are not states) to be full voting members of a House 
     committee exercising the constitutional functions of the 
     House delegated to it could, in the words of the U.S. Court 
     of Appeals, ``encroach on the privileges of membership.''
                                                      Jack Maskell
     Legislative Attorney.
                                  ____

     From: John Filamor.
     Sent: March 5, 2008.
     To: Christina Tsafoulias
     Subject: H. Res. 1003
       Christina: You asked whether H. Res. 1003 (110th Cong.)--
     which would, among other things, alter the House Rules to 
     give four former Members of the House voting rights on the 
     Committee on Standards of Official Conduct--raises any 
     constitutional concerns. While we cannot give you a 
     definitive answer as to the constitutionality of H. Res. 
     1003, the proposal to vest former Members of the House with 
     full voting rights on a standing committee of the House that 
     is responsible in the first instance for carrying out the 
     authority vested in the House by article I, section 5, clause 
     2--the Discipline Clause--certainly raises very substantial 
     constitutional questions for all the reasons set forth in 
     Jack Maskell's March 4, 2008 memorandum (``Permissibility of 
     Non-Members Being Appointed to a Committee of the House of 
     Representatives'') We think those constitutional questions 
     are heightened somewhat by the fact the Standards Committee 
     has, in addition to its authority to investigate and 
     recommend disciplinary action to the full House, the 
     authority under current committee rule 24(c) to, on its own, 
     issue a ``Letter of Reproval or take other appropriate 
     committee action.'' However, we do not believe that the 
     elimination of that particular authority from committee rule 
     24(c) would eliminate the constitutional questions that H. 
     Res. 1003 raises. Mr. Maskell notes in his memo that 
     ``[s]ince the committees act as and on behalf of the House 
     pursuant to its Rules . . . there is a very strong indication 
     that such committees exercising such functions may generally 
     be composed only of Members of the House.''

                                                 John Filamor,

                                    Office of the General Counsel,
                                         House of Representatives.

  Mr. DREIER. Mr. Speaker, I am happy to yield 2 minutes to a 
hardworking member of this so-called bipartisan task force on ethics 
reform, my friend from Michigan (Mr. Camp).
  Mr. CAMP of Michigan. Mr. Speaker, I rise in strong opposition to the 
Democrats' flawed ethics proposal. This bill would actually weaken 
ethics enforcement in the House by adding an unnecessary and even 
unconstitutional layer of bureaucracy to an already failing ethics 
process.
  During our work on the special task force on ethics enforcement, 
Republican Members consistently voiced our opposition to creating an 
ineffective, redundant, and duplicative committee. The Constitution 
explicitly states that the House is solely responsible for punishing 
its Members for disorderly behavior. Creating an Office of 
Congressional Ethics calls into question our constitutional duties to 
discipline our own Members.
  Let me take a minute to point out some of the absurd provisions in 
the Democrat proposals.

                              {time}  1945

  First, board members of the so-called Office of Congressional Ethics 
would be appointed to 4-year terms, yet the House reassembles itself 
every 2 years and must renew its internal rules on a biennial basis.
  Second, reviews by the board would advance on tie votes. This is 
undemocratic and runs contrary to our entire system of majority 
government.
  Third, when board reviews are concluded, the findings are referred to 
the Ethics Committee for further action. This puts us right back to the 
failed system in which we find ourselves today.
  Quite frankly, the most glaring failure of the Democrats' proposal is 
that it does nothing to address the problems inherent to the Ethics 
Committee. Rather than adding a layer of bureaucracy, ethics reform 
should address the problems plaguing the Ethics Committee. I support 
measures that reform the Ethics Committee by creating greater 
bipartisanship, transparency, and accountability in the investigations 
process.
  We should require that all Members appointed to the Ethics Committee 
be chosen jointly by the Speaker and minority leader to end partisan 
gridlock. We should also mandate monthly status reports by the 
committee on pending investigations. The Republican proposal would 
implement these and other important changes, but the Rules Committee 
blocked consideration of our proposals.
  My fellow Members, we must reform the House ethics process and 
restore a sense of public confidence and accountability in this 
institution. The Democrats' bill does neither. I hope you will join me 
in voting down this flawed partisan proposal.
  Ms. SUTTON. Mr. Speaker, at this time, it is my pleasure to yield 2 
minutes to the distinguished gentleman, my colleague from Ohio (Mr. 
Space).
  Mr. SPACE. I thank my colleague from Ohio for yielding time.
  I would like to thank my colleague from Massachusetts (Mr. Capuano) 
for his diligent work under very difficult circumstances for months on 
end. It was difficult for Mr. Capuano because many Members of this 
House did not believe that this resolution is necessary, despite what 
Mr. Capuano has referred to tonight as a problem with

[[Page H1520]]

public perception and a lack of transparency. The Members of this 
House, many of them, still do not get it.
  Our current ethics process is filled with flaws: the conflicts of 
interest exist; only Members can file complaints; the public is left in 
the dark regarding investigations. We haven't been very good at 
policing ourselves. This resolution is necessary because, as Mr. 
Capuano mentions, the American public has lost faith in the institution 
of Congress, and we ignore that loss of faith at our own peril.
  I come from one of those districts that has been referenced as one 
that sent a freshman here on the backs of public discontent. The people 
that I represent back in Ohio's 18th understand all too well the perils 
of public betrayal.
  We have an obligation to restore the public trust. We started that 
last January with ethics legislation that helped sever the link between 
lobbyists and legislators. We need to continue with that movement today 
by looking at ourselves, by looking inward and creating a system that 
is nonpartisan, but is independent, and that will vet, initiate, and 
conduct investigations. This resolution does that. It represents a good 
start. I am proud to have worked on it with my fellow freshman 
colleagues, Mr. Hodes as well as Mr. Murphy, who will be offering 
support today, as well as many others.
  Quite simply, Mr. Speaker, the public is fed up with the status quo. 
They want Members who break the rules to be investigated and brought to 
justice. My esteemed colleague from California today referenced that 
none of what we do matters if we do not have the trust of the public. 
This resolution helps restore that trust. I urge its support.
  Mr. DREIER. Mr. Speaker, at this time I am happy to yield 4 minutes 
to my friend from Pasco, the former chairman of the Committee on 
Standards of Official Conduct, the present ranking member, Mr. 
Hastings.
  Mr. HASTINGS of Washington. I thank my friend from California for 
yielding.
  Mr. Speaker, while I am constrained by confidentiality rules in 
speaking about the current work and past actions of the Ethics 
Committee, I want to clearly state today that I believe the current 
rules and structure of the ethics process should and need to be 
improved.
  The procedures of the Ethics Committee are not perfect, and I firmly 
believe this House should make modifications to those procedures to 
better protect the integrity of the House and the faith of the American 
people. However, Mr. Speaker, this House must act carefully and 
deliberately in making any improvements, and it must be done in a 
bipartisan way. Mr. Speaker, that is not happening.
  No consideration of a bipartisan reform proposal is permitted on the 
floor tonight. The House floor is shut down to any debate. No 
alternative is allowed to be considered. No amendment may be offered. 
No respect, Mr. Speaker, is offered to the concerns expressed by both 
Democrat and Republican Members of this House.
  Mr. Speaker, in 2005, at the beginning of the 109th Congress, 
Democrat leaders decried House rule changes that were written only by 
Republican leaders. Democrats demanded bipartisanship and a fair say in 
the rules that governs the ethics of House Members. Democrats weren't 
given any say then, and those one-way changes to the rules were 
ultimately reversed during the 109th Congress. It is now 3 years later, 
and the same Democrat leaders have abandoned their calls for 
bipartisanship and are refusing to work across the aisle to make 
bipartisan improvements to the ethics process.
  Mr. Speaker, Republicans were wrong to do it in 2005 and Democrats 
are wrong doing it today. In fact, since the new Democrat majority took 
office a little over a year ago, this House has already had to go back 
twice and correct poorly written rules that Democrats passed without 
any input from Republicans. In both instances, Mr. Speaker, Democrat-
written rules that the House had to go back and fix were ethics rules.
  The House should learn from the mistakes of the past several years 
and not doom ourselves to repeat history by failing to insist that 
ethics changes be done in a bipartisan way. For the ethics process to 
work, bipartisanship is vital. Without bipartisanship, the process will 
fail.
  Bipartisanship is not always easy, but it is absolutely necessary for 
the legitimacy of the entire ethics process. Without bipartisanship, 
the process degenerates into politically motivated actions, or witch 
hunts.
  This proposal is not a good proposal, and no one, Mr. Speaker, is 
more disappointed than I. Because Members of the Ethics Committee are 
asked to do an unwelcomed job. We do it by the rules of the House. And 
by the rules of the House, we must remain silent, even when subjected 
to relentless and often inaccurate criticism and attacks on our 
actions.
  So, Mr. Speaker, improve the ethics process. Improve the ethics 
ability to police its Members. Improve our ability to provide timely 
information to the American people. Improve the bipartisanship that is 
central to the ability of the ethics process to function. But, Mr. 
Speaker, for the sake of this institution and for ensuring an ethics 
process that will function properly, do not act in a partisan way by 
supporting a proposal written solely by one party. Oppose this proposal 
and demand bipartisan improvements to the entire ethics process.
  Ms. SUTTON. Mr. Speaker, I yield 2 minutes to the distinguished 
gentleman from Connecticut, my freshman colleague, Mr. Murphy.
  Mr. MURPHY of Connecticut. Thank you very much, Representative 
Sutton.
  Mr. Speaker, I think we're on the precipice of an historic step 
forward in restoring the people's faith in this institution, but I 
understand how difficult this is to talk about. And giving the minority 
the benefit of the doubt, maybe that's why this House sat idly by for 
12 years with no real major reforms to a very broken process.
  But it's tough to talk about because it's not just about a broken 
process, it's about human nature. It's tough to talk about the failure 
of our ethics process because we're talking about the fallibility of 
all of us. It is against human nature, frankly, to rat out your 
friends, to investigate them, to punish your colleagues. And so that's 
why you can't just change people's perception of this place. You just 
can't fix the ethics process by tweaking the process that exists now. 
You have to admit the inherent fallibility of the ability for all of us 
to police ourselves and give that power to an independent body.
  The cat is out of the bag, people figured this out long ago. There 
are too many Members that have violated the public trust, and they've 
watched too many other Members sit idly by.
  Now, I, frankly, agree with my colleague Representative Space that 
this proposal could have been even a little bit stronger with the 
addition of subpoena power, but this is a major step forward and we 
should all support it. There is a generation of young people out there 
who stand on the precipice of losing all complete faith in government 
and in this institution. Tonight we have the chance to do right by them 
by correcting the mistakes of the past.
  I thank Mr. Capuano and the task force for their hard work here, and 
I urge passage of the rule.
  Mr. DREIER. Mr. Speaker, I'm happy to yield 5 minutes to my very good 
friend, the gentleman from San Antonio, the Republican leader of this 
important task force, Mr. Smith.
  Mr. SMITH of Texas. I want to thank my friend from California, the 
ranking member of the Rules Committee, for yielding me time.
  Mr. Speaker, at the outset I want to recognize the dedication and 
focus that Representative Capuano, the chairman of the Ethics Task 
Force, has demonstrated throughout this process. We know the best of 
intentions underly his desire and the desire of all Ethics Task Force 
members to enhance the integrity of the House of Representatives.
  While this proposal is marginally improved over the first proposal, 
it still contains flaws that make it defective. The fundamental flaw of 
the proposal is that it fails to reform the House Ethics Committee 
itself. The creation of another ethics entity would be an admission of 
the failure of the Ethics Committee.
  Americans rightly feel the ethics process simply does not work. They 
do not know when ethics investigations are started; they do not know 
the status of those investigations, and they do not know whether a 
partisan deadlock

[[Page H1521]]

has resulted in stalling an investigation forever. Americans need this 
knowledge, and that can only come through reforms to the Ethics 
Committee itself that will produce more bipartisanship and greater 
transparency. But the proposal before us simply adds another layer of 
bureaucracy on top of an already broken system. It creates an entirely 
new entity that invites yet more partisanship under clearly 
undemocratic procedures.
  This country and the House of Representatives is founded on the 
principle of rule by majority; yet this proposal allows ethics 
inquiries to be initiated upon the request of only two out of the six 
board members. Furthermore, the proposal requires ethics investigations 
to go forward even when majority support among the board members cannot 
be obtained. This is undemocratic.
  The resolution before us today is different from the original 
resolution and includes several changes. One amendment to the 
resolution now provides that the Speaker and minority leader will each 
nominate three members of the board with the concurrence of the other. 
Even under such a system, three board members will have been selected 
by the leader of a partisan political party.
  Another amendment would provide that an investigation be terminated 
unless three board members affirmatively voted to proceed with an 
investigation. But if one board member nominated by the Speaker and one 
board member nominated by the minority leader agreed to initiate an 
investigation, but upon further review either board member decides the 
matter should be dismissed, the investigation can still proceed with 
the support of only those board members nominated either by the Speaker 
or the minority leader.
  Not only does this resolution retain the undemocratic nature of the 
resolution, it also allows investigations to go forward on a purely 
partisan 3-3 vote. This is an open invitation to a partisan free-for-
all. As a recent editorial in Roll Call stated bluntly, ``We don't deny 
it's a gamble.''
  Under this proposal, many Members who deserve better could have their 
reputations unfairly diminished. A recent editorial in The Hill 
newspaper entitled ``Leaking Ethics'' focused on this point. It said, 
``All it takes is one source to say the Ethics Committee may launch a 
probe into a Member and that lawmaker's reputation will be forever 
damaged whether he or she is guilty or innocent.''
  Whether this resolution passes or not, Congress will survive. But if 
it passes, Members should know there is an obvious danger the ethics 
process will become even more partisan and that innocent Members will 
be hurt.
  I urge my colleagues to oppose the rule on the resolution which 
invites partisanship, undermines democracy, and poses unacceptable 
risk.
  Ms. SUTTON. Mr. Speaker, I yield 2 minutes to the distinguished 
gentleman from Indiana (Mr. Hill).
  Mr. HILL. I thank the gentlelady from Ohio for yielding this time.
  Mr. Speaker, I rise not to make a recommendation to Members on how to 
vote on this bill; I rise to remind Members that if they decide to vote 
this bill down, that does not mean that there is no alternative that 
they can vote for.
  A great deal of talk tonight has been made about bipartisanship, and 
I think that's very important. We need to have a bipartisan bill, and 
we had one. I introduced legislation last year that would create a new 
Ethics Committee consisting of former Members of Congress.

                              {time}  2000

  Just a few weeks ago, my good friend from Tennessee (Mr. Wamp) made a 
similar recommendation with a few differences. His recommendation was 
to have six members who were former Members and six members who are 
current Members. I joined with Mr. Wamp, and now we have huge 
bipartisan support for a concept that merits a vote.
  Now, when I campaigned on this particular issue back in 2006, this 
gained a great deal of support in my district when I outlined the 
specifics. This is a good bill, and I think if you go back to the Ninth 
District in Indiana, they will confirm that this is a good bill. And it 
is a bipartisan bill. Let's for once in this body act in a bipartisan 
way.
  As I said, I make no recommendation as to how you should vote on this 
bill. But if you decide that you want to defeat this bill, there is an 
alternative. It is bipartisan. It is substantive, and it has subpoena 
powers. In many ways this bill is a better bill because it is a 
stronger bill.
  I urge Members to consider what I have said, that there is an 
alternative out there. It's not the end of the day. The game is not 
over. The game can go on. We can pass a good bill with bipartisan 
support.
  Mr. DREIER. Mr. Speaker, at this time I am happy to yield 2 minutes 
to the distinguished Republican whip, the gentleman from Missouri (Mr. 
Blunt).
  Mr. BLUNT. I thank the gentleman for yielding.
  Mr. Speaker, 3 years ago at the beginning of the 109th Congress, the 
minority leader, today the Speaker, said that the rules of the House 
should never be changed without bipartisan cooperation. I think that 
did not mean without a bipartisan meeting. It meant without a 
bipartisan effort to reach a conclusion that both sides believed would 
improve the ethics process in the House.
  During this Congress, the Ethics Committee has not worked. I don't 
think anybody is going to rise to debate the other side of that. This 
outside commission, if it does become part of the rules tonight, 
through this rule, it would have no vote, no amendment, no alternative. 
If it does become part of the rules, almost assures that the Ethics 
Committee will not work for the remainder of this Congress. This new 
outside group will become the reason to wait. It will take 45 or 60 
days to reach agreements on people who can serve, if that can be done 
that quickly. It will take them another 60 days to get a staff 
together. Already we're clearly outside the ethics process working in 
this Congress.
  The bill that Mr. Hill just mentioned, the bill that Mr. Smith just 
mentioned would both be focused on making the process work and work 
now. They both would be focused on ensuring that this process does what 
it's supposed to do.
  This rule not only rushes without any real alternative or debate, but 
also Members were informed today that last November the bipartisan 
staff of the Ethics Committee asked to evaluate the concepts behind 
this bill gave reason after reason after reason why they thought those 
concepts were flawed, concepts that have not been improved by the 
changes that were made in the last few days. They gave reason after 
reason after reason why they thought this commission would make the 
Ethics Committee less likely to be able to do its job effectively. And 
we still rushed, Mr. Speaker, to try to force this on the Congress when 
that information, we now know, has been available since November. We 
got it today.
  I think we ought to give the time for the people who work on ethics 
every day to be able to publicly evaluate this concept.
  Ms. SUTTON. Mr. Speaker, at this time I yield 2 minutes to the 
distinguished gentleman from New Hampshire (Mr. Hodes).
  Mr. HODES. I thank the gentlewoman for yielding. I also thank Mr. 
Capuano for his leadership on this matter.
  Mr. Speaker, I rise in support of this bill and in strong support of 
accountability and transparency in all public service.
  For years the former congressional leadership eroded the faith of the 
American people through corruption, dishonesty, and abuse of power. I 
came into office pledging to restore the people's trust; and as 
stewards of the public trust, we must hold Congress to the highest 
standard and end the abuses of the past.
  This legislation before us is an important step in restoring the 
trust of the people we serve in this body. It puts ethics violations in 
the hands of an independent, nonpartisan board; and that is the right 
way to give the American people the confidence that any corruption will 
be investigated fairly and thoroughly.
  I have also stood with my colleagues Mr. Murphy of Connecticut and 
Mr. Space of Ohio to cosponsor an amendment that would allow this body 
to have subpoena power in order to give the board the real teeth an 
outside investigative body should have. In my

[[Page H1522]]

judgment, I would have preferred that the leadership and the Rules 
Committee had allowed this amendment to reach the floor for 
consideration. In the fullness of time, I believe we will see the 
wisdom of giving this new independent ethics body all the tools it 
needs to investigate alleged violation. However, even without this 
added power, I will support this bill because the perfect must not be 
the enemy of the good.
  Let there be no mistake, Mr. Speaker. This bill has had bipartisan 
input, and the bill was even pulled from the floor to make sure that on 
a bipartisan basis suggestions for improvement were heard, reviewed, 
and incorporated.
  I was sent to Congress by the people of New Hampshire to clean up 
Washington. This legislation may not go all the way, but it goes a long 
way towards helping restore trust in the people's House.
  Mr. DREIER. Mr. Speaker, I would just say in response to my friend 
that bipartisan input has, unfortunately, not taken place. The 
gentleman is totally incorrect.
  And to confirm that, Mr. Speaker, I am happy to yield 3 minutes to a 
hardworking member of the task force, my friend from Goddard, Kansas 
(Mr. Tiahrt).
  (Mr. TIAHRT asked and was given permission to revise and extend his 
remarks.)
  Mr. TIAHRT. I thank the gentleman from California for yielding.
  Mr. Speaker, I was very excited to be part of this ethics task force. 
And led by the able leadership of Chairman Mike Capuano and Ranking 
Member Lamar Smith, I was very hopeful that we could work in a 
bipartisan fashion to come up with a good, solid ethics bill.
  We held over 30 hearings. We worked very hard. And I believed we were 
on track until about last August. And sometime during last August, the 
outside special interest groups got to the Democrat leadership, and 
this whole effort was derailed.
  And what came out of this was terrible and I will just give you one 
specific example. This whole thing puts all of us in a vulnerable 
situation, but in this one specific instance there are six members 
appointed to the Office of Congressional Ethics, the OCE, and there are 
supposed to be joint appointments with the Speaker of the House and the 
Minority Leader. But there is a caveat. If you cannot get an agreement, 
and just hold off for 90 days and get your respective appointee in this 
position as one of the six members of the OCE.
  Now, why should we be concerned that this was hijacked by the outside 
groups? These outside special interest groups exist to chastise and 
press charges against Members of Congress. That's how they raise their 
money. That's why they exist. And they're on both sides of the 
political spectrum; so all of us are vulnerable. These groups take 
sides in political battles, and use any scrap of evidence they can find 
to try to press charges against Members of Congress.
  In fact, if you have ever amended your FEC report, there are examples 
of how they've used that as alleged unethical charges against Members 
of Congress. And nothing disqualifies these members of outside groups 
from sitting on the OCE as one of six members.
  So we're all vulnerable by these politically motivated people being 
incorporated into this whole process to make sure that all of us have a 
chance to face charges, whether justified or not.
  Now, just think of your worst critic. They're out there in the blogs. 
They're in the call-in for your newspapers. These are the types of 
folks that you will be confronted with if we allow these outside groups 
to inject themselves in this process.
  And how will you respond? Well, the first thing you will have to do 
is go out and hire a lawyer, and those lawyers are about $1,000 an 
hour; and a minimum investigation, even when you're innocent, is going 
to a quarter of a million dollars. Now, some people don't mind that. 
Some have plenty of money to burn. But I think a majority of Members 
here in this Congress realize that even a false charge can bankrupt 
them and force them into a position where they have no financial 
substance. That will happen in this ethics bill.
  This is just the tip of the iceberg of how this process got hijacked 
and how this ethics bill is not fair to Members of Congress. It's 
unconstitutional. And I think this rule ought to be defeated. And if 
you have a single ounce of self-preservation, you will vote ``no'' for 
this rule and vote ``no'' against this unconstitutional bill.
  Mr. Speaker, rise today with reluctance and regret that I am unable 
to support the House rule change before us today.
  Exactly 12 months ago I was both honored and excited to receive the 
appointment from my leader to serve on the Speaker's Special Task Force 
on Ethics Enforcement. At the time, like my Republican colleagues, I 
was excited about the possibility of forging together a bipartisan 
piece of legislation that would address the fundamental issues that are 
currently plaguing our ethics system in Congress. Under the capable and 
civil leadership of Chairman Mike Capuano and Ranking Member Lamar 
Smith, I was hopeful of what we could achieve.
  For the past 13 years I have observed the House ethics process and 
came to the conclusion early on that our system was not transparent 
enough, not efficient enough, and simply not effective. In a word, our 
system was broken. Sadly, today, I am forced to accept that the 
Speaker's Task Force has failed its mission and has produced a 
partisan, undemocratic, and unconstitutional bill that I am convinced 
will only compound our current problems--and further frustrate the 
wishes of the American people for this House to clean up its act.
  While the Democrat proposal is flawed in several substantial ways, 
its biggest and most glaring failure is that it turns a democratic 
ethics process into an undemocratic and partisan one where justice can 
be easily denied. Under the proposal before us today, an investigation 
can he initiated by the action of only two of the six members of the 
new independent Office of Congressional Ethics, OCE.
  The legislation also mandates that names of the two members remain 
secret and kept from the American public and the accused Member of 
Congress. An earlier version of this legislation required a majority 
vote of the new committee before proceeding to a second-phase review of 
the pending matter. However, under the version we are debating today, a 
full-fledged review and investigation may occur without a majority vote 
of the OCE. This proposal jettisons the basic and fundamental right of 
democracy and fair play.
  Mr. Speaker, in addition to being undemocratic, this proposal also 
contains several provisions which are most likely unconstitutional and 
therefore unenforceable. The most egregious provision is the creation 
of the OCE.
  In its 200+ years of existence, Congress has never seriously 
contemplated handing over one of its most important responsibilities--
that of regulating and disciplining its own Members--to an outside 
entity that is unaccountable to the American people unlike elected 
Members of Congress.
  The legislation before us today would do just that. However, instead 
of abdicating our constitutional responsibility as specified in article 
I, section 5 of the United States Constitution, I propose that our task 
force goes back to work--and finds a solution which bridges our 
partisan differences while adhering to our constitutional obligations.
  Our Ethics Committee is broken--so why not focus on and fix the 
problem instead of creating a whole new set of problems that will only 
serve to further undermine our ethics process? If Members of Congress 
are truly interested in repairing our ethics process--if Members of 
Congress are truly committed to restoring honor and integrity to this 
House--it's essential that we come together in a bipartisan spirit and 
develop a package that both sides can agree upon and support. 
Unfortunately, today's legislation falls way short of hitting that 
mark.
  Mr. Speaker, in addition to abolishing basic rights of democracy and 
fair play--this proposal promises to undermine ongoing Ethic's 
Committee investigations and will likely impede Department of Justice 
investigations. In just one example, this legislation imposes an 
unreasonable period of time to investigate unethical conduct.
  Quick and incomplete investigations can lead to unjust results--
including charging the innocent and letting the guilty off free. It's 
imperative that our processes of maintaining the highest standards of 
ethical behavior supports and complements the House Ethic's Committee--
regrettably, this bill will only undermine its ability to do its job.
  On September 26, 2007, David H. Laufman, a former Investigative 
Counsel for the House Ethics Committee from 1996-2000 and a former 
federal prosecutor opined the following in Roll Call:

       ``[T]he creation of an outside ethics panel will not solve 
     the core problems that currently afflict the House. Real 
     ethics reform

[[Page H1523]]

     in the House begins with willingness on the part of both 
     party leaderships to refrain from political intervention in 
     the ethics process and give the ethics committee the 
     independent, professional resources it needs to do its work. 
     . . . Creating an outside panel, moreover, would simply 
     create another layer of ethics bureaucracy that further slows 
     down a process already characterized by sluggishness.''

  At this time I would like to submit Mr. Laufman's entire Op-Ed into 
the Record.
  Mr. Speaker, instead of maintaining and fostering the cause of 
justice and ethical behavior in Congress, this piece of legislation may 
actually thwart the efforts of the Ethics Committee and Justice 
Department to investigate unethical behavior and punish Members 
appropriately. Again, if the Ethics Committee is broken lets fix or 
replace it--but why in the world would we want to ignore the problem by 
creating an additional layer of legislative redtape--which will only 
serve to work against the purposes of the Ethics Committee--instead of 
enhancing its ability to get its job done fairly and expeditiously.
  Mr. Speaker, it was an honor to serve on this Task Force and work 
with my 7 distinguished colleagues. Over the past 12 months I 
participated in over 30 hearings, listening to testimony from a wide 
variety of interests on this important matter before us today.
  While various organizations expressed their support for the concept 
of creating an independent body--and their endorsements have been 
promoted today in this debate--it would be unfair to not recognize that 
several witnesses expressed their misgivings and concerns with the 
direction this legislation would take the House ethics process. 
Witnesses I suggest were more qualified then others to testify to the 
pros and cons of creating a new independent body.
  Last March the task force met in private with former Congressmen Bob 
Livingston, R-LA, and Louis Stokes, D-OH, regarding their experiences 
from serving as cochairs of the last House Ethics Task Force in 1997. 
Both men had served on the House Ethics Committee and were highly 
esteemed by their colleagues. Congressman Stokes was a former chairman 
of the House Ethics Committee and shared the following statement with 
our task force members:

       I strongly believe the current Ethics Committee structure 
     should be preserved. I think Congress has a constitutional 
     obligation to police its members. The mechanism exists to 
     hire outside counsel whenever necessary, as the Committee did 
     in the Abscam cases and also in the sex and drug 
     investigations. In both cases the House received accolades 
     for its work. A dangerous aspect of investigations by either 
     a House Committee or an outside panel is interference with 
     Justice Department investigations.

  At this time I would like to submit Mr. Stokes entire written 
statement into the Record.
  Mr. Speaker, I would like to raise one additional point that warrants 
discussion. Regardless of the outcome of today's vote, I believe it is 
important that this House give serious consideration to providing 
attorney's fees for Members of Congress that may become the subject of 
an OCE or Ethics Committee review in the future--but are subsequently 
cleared of any baseless charges. Under the OCE structure set up in this 
rule, it will be very easy for any two members to initiate an 
investigation--for any reason--without any real evidence--which in turn 
will force any discerning Member to hire a DC attorney to make sure 
their rights are protected and their name is not damaged in the 
process.
  Colleagues do not be fooled--this will become inevitable if this rule 
is enacted today.
  I want to thank Chairman Capuano for highlighting the issue of 
attorney's fees in his Report and also commend him again for his 
leadership and hard work with the task force. While I am unable to 
support its outcome today, I know that every member of the task force 
is sincere in their desire and efforts to help fix what's wrong with 
our current ethics process. Unfortunately, today's rule change falls 
way short of our goal.
  Mr. Speaker, let me acknowledge that we started out on a great glide 
path of bipartisanship--but eventually the Democrat leadership was 
influenced by various outside organizations that refused to accept any 
compromise that involved maintaining the current democratic rules of 
justice and fair play. For example, the task force members--both 
Democrat and Republican--had agreed in principal to allow outside 
entities the right to submit ethics complaints to the OCE.
  In fact, this provision was requested by these various organizations 
and highly promoted as a vehicle to bring much needed credibility to 
the current ethics process. And, while I had some reservations about it 
I was willing to support this provision.
  Unfortunately, these same organizations were not willing to be 
subjected to the same level of scrutiny and transparency they wished to 
impose upon Members of Congress--namely the disclosure of their largest 
donors who may or may not have an ax to grind with a Member of 
Congress. One official quoted in an article on the issue stated: ``you 
can. imagine how upsetting this [provision] is to the donor 
community.''
  Indeed.
  And that was the end of that.
  In closing Mr. Speaker, let me also thank Ranking Member Lamar Smith 
for his leadership, experience, expertise, and tireless efforts that he 
brought to this important effort.
  Let me also thank the capable staff that assisted us throughout this 
process, including: Paul Taylor, Chief Republican Counsel to the House 
Judiciary Subcommittee on the Constitution; Ed Cassidy, Senior Advisor 
and Floor Assistant to the Republican Leader, and my Chief of Staff, 
Jeff Kahrs.
  Before I end I can't help but note the irony in spending well over 
100 hours of my time hearing testimony and discussing the significant 
ramifications of each provision within this legislation--the most 
sweeping ethics legislation in over 10 years--and the Democrat 
leadership decision to bring this bill to the floor--under the cover of 
darkness--and under a closed partisan rule which only allows 30 minutes 
of debate on each side--that's less than 30 seconds for each Member of 
this House to be heard on this topic.
  Mr. Speaker, I hope that Members will not be fooled by the lack of an 
open and full debate on this important issue. I strongly oppose this 
rule change and respectfully urge all Members--Democrats and 
Republicans--to reject this proposal. It's time for the Ethics Task 
Force to get back to work and find a bipartisan solution to our failed 
ethics process that is supported by a majority of both Republican and 
Democrat Members. Anything less then a bipartisan solution will result 
in partisan failure.

                    [From Roll Call, Sept. 26, 2007]

            Outside Panel Won't Resolve Core Ethics Problems

                         (By David H. Laufman)

       Now that President Bush has signed into law S. 1, the 
     Honest Leadership and Open Government Act of 2007, it is fair 
     to ask what sort of enforcement regime for the new rules 
     Members of Congress can expect from the Senate Ethics 
     Committee and the House Committee on Standards of Official 
     Conduct, also known as the House ethics committee. As in so 
     much of life, the answer is: It depends.
       The Senate Ethics Committee has long functioned quietly and 
     methodically to evaluate ethics complaints and allegations of 
     misconduct in a professional, nonpartisan manner. That track 
     record reflects the relative collegiality of the Senate and 
     the inclination of the respective party leaderships to leave 
     ethics matters ``to the professionals'' for sorting out. 
     There is every reason to expect that the Senate committee 
     will bring the same balanced enforcement to the new rules 
     that has characterized its operations in the past.
       The House ethics committee, however, is a different matter. 
     Although the committee has undertaken some tough 
     investigations in recent years--most notably, its inquiries 
     regarding former Majority Leader Tom DeLay (R-Texas) and 
     former Rep. Bud Shuster (R-Pa.)--it has been cleaved by 
     partisan turmoil and deadlock for much of the period since 
     the conclusion of the cases against former Speaker Newt 
     Gingrich (R-Ga.) in 1997. The nadir of this devolution 
     occurred in 2005, when two seasoned attorneys on the 
     committee's nonpartisan staff were fired in apparent 
     retribution for their work on the DeLay investigation, and 
     two committee members believed to be ``politically 
     unreliable'' by their party leadership were summarily 
     jettisoned.
       Now, there is potential for even further disequilibrium in 
     the House ethics process. At issue is the pending 
     determination by the Special Task Force on Ethics Enforcement 
     as to whether an outside panel should be established to 
     conduct preliminary review of ethics complaints and make 
     recommendations to the House ethics committee on whether 
     investigative action should be undertaken.
       As a former investigative counsel to the House ethics 
     committee who investigated both Democrats and Republicans--
     and as a former federal prosecutor--I fully appreciate the 
     importance of conducting thorough, independent 
     investigations. I also appreciate that the establishment of 
     an outside ethics panel might enhance public confidence in 
     the integrity of the House ethics process. But the creation 
     of an outside ethics panel will not solve the core problems 
     that currently affect the House.
       Real ethics reform in the House begins with a willingness 
     on the part of both party leaderships to refrain from 
     political intervention in the ethics process and give the 
     ethics committee the independent, professional resources it 
     needs to do its work. All the new ethics laws and rules in 
     the world will amount to nothing unless the party leadership 
     on both sides refrain from politicizing the ethics process, 
     the committee members ultimately charged with implementing 
     them are committed to consistent, nonpartisan enforcement, 
     and committee members do not have to worry about retaliation 
     from their party leadership or fellow members.

[[Page H1524]]

       Establishing an outside ethics panel also would constitute 
     a historic abdication of the House's constitutional 
     responsibility for self-regulation. Article I, Section 5, 
     Clause 2 of the U.S. Constitution states that ``Each House 
     [of Congress] may determine the Rules of its Proceedings, 
     punish its Members for disorderly Behavior, and with the 
     Concurrence of two thirds, expel a Member.'' Although the 
     drafters of the Constitution chose the permissive ``may'' 
     rather than ``shall,'' it is clear that they intended to 
     create a system of peer review where Members of Congress 
     shoulder the responsibility for weighing allegations of other 
     Members' misconduct. The establishment of an outside panel to 
     evaluate ethics complaints would be an unprecedented 
     deviation from more than 200 years of self-regulation. 
     Moreover, it would be tantamount to an admission that the 
     House is now unable to fully govern itself and needs 
     protection against its own improper impulses.
       Nor, if established, would an outside panel likely improve 
     the House ethics process. First, none of the publicly 
     reported proposals under consideration to establish an 
     outside panel divests the House ethics committee of ultimate 
     decision-making discretion as to whether ethics violations 
     occurred or what sanctions to impose if a violation is found. 
     Creating an outside panel, moreover, would simply create 
     another layer of ethics bureaucracy that further slows down a 
     process already characterized by sluggishness. Second, making 
     informed assessments of allegations of misconduct requires 
     more than the mere application of law or rules to facts: It 
     also requires a nuanced understanding of the institutional 
     context in which the alleged misconduct occurred. Arguably, 
     the need for such a nuanced understanding is particularly 
     great in the case of a political institution that has its own 
     unique cultural attributes. It is possible that retired 
     Members of Congress could bring the necessary perspective to 
     bear if appointed to an outside ethics panel. It is less 
     likely that retired jurists, academicians or individuals from 
     other professions would be equally capable of making the 
     necessary contextual judgments.
       That the committee would retain autonomy to reject the 
     recommendations of an outside panel ignores political 
     realities surrounding ethics scandals. If, for example, the 
     outside panel recommended that the committee initiate an 
     investigation--a recommendation that almost certainly would 
     become publicly known--the pressure on the committee from 
     interest groups and the news media to accept the panel's 
     recommendation would be formidable.
       Clause 1 of House Rule 23, which comprises the Code of 
     Official Conduct, states that ``A Member, officer, or 
     employee of the House of Representatives shall conduct 
     himself at all times in a manner which shall reflect 
     creditably on the House of Representatives.'' The special 
     task force would bring credit on the House by rejecting the 
     idea of an outside ethics panel and recommitting the House to 
     ethics enforcement marked by bipartisanship and consensus.
                                  ____


          Congressman Louis Stokes' Statement on Ethics Reform

       I strongly believe the current Ethics Committee structure 
     should be preserved. I think Congress has a constitutional 
     obligation to police its members. The mechanism exists to 
     hire outside council whenever necessary, as the Committee did 
     in the Abscam cases and also in the sex and drug 
     investigations. In both cases the House received accolades 
     for its work. A dangerous aspect of investigations by either 
     a House Committee or an outside panel is interference with 
     Justice Department investigations. I think this danger may be 
     better contained by a House Committee. Also, the House has a 
     great educational process for members along with an approval 
     process to keep members from going astray. Neither a House 
     Committee nor an outside Panel or Commission can stop a 
     member who uses his position in Congress to obtain a Rolls 
     Royce, a yacht, a million dollar home, and other illegal 
     gifts. The current system worked when I had men like Floyd 
     Spence and Jim Hansen as my ranking member because we 
     approached the business of the Committee on a bi-partisan 
     basis. We handled the tough cases and never had a dissenting 
     vote.

  Ms. SUTTON. Mr. Speaker, I yield 1 minute to the gentleman from 
Hawaii (Mr. Abercrombie).
  Mr. ABERCROMBIE. I'm sorry, the time is incorrect. The time is 2 
minutes.
  Ms. SUTTON. Mr. Speaker, I yield 1 minute to the gentleman from 
Hawaii (Mr. Abercrombie).
  Mr. ABERCROMBIE. Mr. Speaker, I have a parliamentary inquiry.
  The SPEAKER pro tempore (Mr. Pomeroy). The gentlewoman from Ohio is 
controlling the time. She has yielded 1 minute to the gentleman from 
Hawaii.

                          ____________________