[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.
____________________