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Statement of Regarding Activities of House Ethics Committee and Office of Congressional Ethics

Campaign Legal Center * Common Cause * Democracy 21 * League of Women Voters * Public Citizen * U.S. PIRG

Oct. 30, 2009

Statement of Regarding Activities of House Ethics Committee and Office of Congressional Ethics

Our organizations have sought to improve and strengthen a discredited congressional ethics process, including the creation of a more independent investigatory office. We note that yesterday’s inadvertent release of information regarding the activities of the House Ethics Committee and the Office of Congressional Ethics (OCE) indicates that both groups are seriously pursuing their ethics responsibilities at this stage. In our view, OCE, both by its very existence and by its actions, deserves much credit for this sharp increase in activity at the Ethics Committee as compared to previous years.

We are deeply concerned, however, about yesterday’s actions by the Ethics Committee with respect to the investigation of Representative Sam Graves (R-MO).

The Ethics Committee’s strong attack on the OCE in its report dismissing the Graves case is completely uncalled for and raises serious concerns that the Ethics Committee is engaged in an effort to undermine, weaken and possibly eliminate the Office. It also raises serious concerns about the Ethics Committee’s approach to interpreting House ethics rules.

The Graves matter is the first instance where the newly created Office has been publicly attacked by the Ethics Committee. The result has been a messy public food fight, with the House Ethics Committee inappropriately challenging the activities of the OCE.  This outcome is unfortunate and we believe should have been resolved more professionally and amicably. If the Ethics Committee had problems with OCE, they should have been negotiated out in good will discussions as the process moved forward. Unfortunately, that did not happen in this case.
The accusations lodged against the OCE by the Ethics Committee include its failure to abide by the rules on timelines, and the failure to provide Rep. Graves and the Committee with what the Committee describes as relevant and exculpatory information. We believe that these questions about timelines and their extensions in this case were relatively minor and can be easily resolved in future cases.  Similarly, there can be greater clarification about what materials should be made available by OCE to the Committee and to the subject of an OCE investigation.  These disagreements should be viewed as bumps in the road that can and should be easily fixed.

But the lengthy Ethics Committee Report also contains the very troubling finding by the Committee that “no relevant House rule or other standard of conduct prohibits the creation of an appearance of a conflict of interest when selecting witnesses for a committee hearing.” On this basis, the Ethics Committee goes on to conclude that OCE could not find a violation of any current House Rule or other standard of conduct and that it violated “both its authorizing resolution and its own rules when it forwarded this matter” to the Committee.

This approach to the ethics rules ignores the fact that there are various places in the ethics rules themselves where an appearance standard has been used by the Ethics Committee to find ethics violations.

House Members, for example, are subject to the “broad ethical standards” articulated in the Code of Official Conduct. Id. at 12. These standards provide that Members shall conduct themselves “at all times in a manner which shall reflect creditably on the House of Representatives.” Rule 23, cl. 1.

This standard is “the most comprehensive provision of the code,” according to the House Ethics Manual id. at 13-14, and has been cited and relied on by the Ethics Committee in numerous prior ethics matters.

Thus, the notion that there are no appearance standards that could have applied to this case is just plain wrong. The “most comprehensive provision of the code” could have applied in this case. As a result, it is wrong for the Ethics Committee to claim that OCE violated “both its authorizing resolution and its own rules when it forwarded this matter” to the Committee.

There are other examples, furthermore, where an appearance of conflict or impropriety standard is found in the House ethics process.

For example, the appearance standard is found in the House Ethics Manual which states “Caution should always be exercised to avoid the appearance that solicitations of campaign contributions from constituents are connected in any way with a legislator’s official advocacy.” House Ethics Manual at 257 (1992 ed.)
The House Manual also states that House Members “should be aware of the appearance of impropriety that could arise from championing the causes of contributors and take care not to show favoritism to them over other constituents.” Id. at 251.

Thus, the Ethics Committee dismissal of an appearance standard in ethics matters is a serious and regrettable mistake by the Ethics Committee We urge the House leadership to reject this notion and to  take steps to correct the impression left by the Ethics Committee.

In addition, we note that the Ethics Committee attacks OCE for misapplying the “substantial reason to believe” test on the grounds that it did not cite the relevant ethics rule that may have been violated in this case. As House rules state, it is a core responsibility of OCE to determine whether a matter should be dismissed or should be sent to the Ethics Committee, based on whether OCE determines there is substantial reason to believe that any ethics rules and standards may have been violated.  In fact, OCE did cite relevant ethics standard that may have been violated. It is then the Ethics Committee’s responsibility to further investigate and adjudicate the matter. We strongly believe that the Ethics Committee should maintain its focus on the many important ethics matters currently before it rather than engaging in an extensive and time-consuming effort to undermine the basic functions and jurisdiction of the OCE.

While we are pleased that the Ethics Committee decided to release to the public the report and findings of OCE, as required by House rules, the Committee, by its own admission in its report, seriously considered not releasing the OCE report as requested by Representative Graves’ legal counsel.  To have refused to release the OCE report would have been a violation of House rules and would have called for serious criticism of the Ethics Committee. One of the main purposes in creating the OCE was to increase transparency.

The Ethics Committee’s Report in the Graves matter reveals a troubling approach that has too often characterized the Ethics Committee’s enforcement of House ethics rules.  Too often, the Committee has resorted to highly technical legal interpretations or to questionable interpretations of the House ethics rules and standards when confronted with questionable activities that, to the public, come across as unseemly but are common practice among Members of Congress.
But the Ethics Committee has staked out much more dangerous territory here in (1) concluding that there is no relevant appearance standard that could apply in this situation and (2) attacking OCE for forwarding a matter which OCE concluded deserved Committee adjudication. The Committee’s attacks on these points were misguided and the Committee’s exoneration of Representative Graves based on this interpretation does not help the credibility of the House Ethics committee or the ethics process.

The transparency resulting from the release of the OCE Report and the Ethics Committee’s Report has brought into full public view the internal struggle that is occurring between OCE and the House Ethics Committee. As public reports have shown, there are Members who apparently believe the OCE is either unnecessary or unwarranted.  In the Graves Report, the Ethics Committee seems intent on giving OCE’s opponents as much ammunition as they could muster.

We applaud the OCE for its performance to date. We recognize and appreciate that the Ethics Committee is currently engaged in serious ethics inquiries in multiple cases. We are concerned about the Ethics Committee’s apparent efforts to attack the OCE and strongly urge the Committee to back off and work out its differences with OCE in an amicable, professional, and negotiated process.

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