Robert L. Walker, an attorney with the D.C. firm Wiley Rein, is a former chief counsel and staff director of the Senate and House ethics committees.
As an attorney in the private sector, I am not a booster of the Office of Congressional Ethics — the bipartisan entity established within the House of Representatives in 2008 to conduct independent preliminary reviews of allegations of misconduct by House members and staffers and, when necessary, to refer such allegations to the Ethics Committee for further investigation and action. In representing many members, staff, private entities and individuals before the OCE, I have experienced firsthand how the OCE board has issued overly broad and intrusive requests for information, taken overly expansive positions on the scope and meaning of House standards of conduct, and (albeit by design of its organizational charter issued by the House) overlaid a duplicative series of investigative steps on what was already a drawn-out and byzantine ethics disciplinary process.
However, as an observer and student of government ethics rules and processes, and of their vital importance in maintaining an essential measure of public faith that our public servants are working for the public good, I applaud Tuesday’s decision by House Republicans to scrap a proposed rules change that would have eliminated the independence of the OCE by putting it under the direct supervision (effectively, the control) of the House Ethics Committee. Among other restrictions to the OCE’s authority and power, the proposed rules amendment would have assured that the OCE immediately ceased its investigative activity on a matter when requested by the Ethics Committee and would have prohibited the OCE board from issuing any public or press statement about its activities, or from issuing any investigative findings or report, except as specifically authorized by its rules.
The proposed limitations on the OCE’s public voice seem to have been motivated largely by events surrounding parallel investigations by the OCE and the Ethics Committee into 2013 travel by several House members to a conference in Azerbaijan allegedly funded by that country’s state-owned oil company. First, when the Ethics Committee, which had commenced an investigation into the Azerbaijan allegations, asked the OCE to cease its investigation into the same matter, the office did not do so promptly. Second, a couple of months after this request to cease, The Post and Politico reported extensively on what should have been a confidential OCE report on the Azerbaijan travel; many observers concluded that the OCE leaked its report to the press. Third, after the committee closed its investigation of the relevant members without issuing the OCE’s findings (stating that such a release could prejudice potential referrals to the Justice Department), the OCE took the extraordinary step of releasing its full findings on each of the members involved.
Clearly, changes to the OCE’s organizational and procedural rules would make sense to prevent unauthorized leaks of confidential information and to lessen the possibility that the board and the Ethics Committee find themselves at cross purposes on future matters. Since it was established, the OCE has played a healthy gadfly role in keeping the Ethics Committee on track and on its toes, but that role should not descend to directly undermining the work of the committee or the House ethics investigative and disciplinary processes generally. On the other hand, having injected transparency into the ethics process with the creation of an independent OCE (whose findings and reports must be released publicly, except under rare circumstances), the House should not appear to be compromising this transparency by putting the OCE under the control of the Ethics Committee. Although, on paper, the proposed rule would not have eliminated the requirement for public release of the OCE’s report of a completed investigation, at least theoretically the Ethics Committee would have had the ability to intervene, and potentially terminate, an OCE investigation before its completion.
Historically, changes to congressional ethics rules and processes have been made based on the work and findings of task forces and study committees operating largely on a bipartisan basis. Both parties have to live under any new rules or processes, both parties have to give their “buy-in” for any new process to work, so both parties should participate in devising rules changes, if any. But it is the public’s buy-in, into rules and procedures that are at once fair to those they cover but demonstrably designed to get at — and get out — the whole truth, that is the essential underpinning of a credible congressional ethics process.
House Republicans kept this in mind in rejecting changes to rules governing the OCE. The House as a whole will need to keep this in mind going forward.