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Does the Office of Congressional Ethics Have an Agenda?

Does the Office of Congressional Ethics Have an Agenda?

"I think these complaints are simply sour grapes."

With the Office of Congressional Ethics (OCE) prepping to investigate Rep. Michele Bachmann (R-MN) in one of the more publicized ethics cases in recent years, some observers are wondering whether the office in question is really equipped to handle the investigation. The reason? The Bachmann case has generated an unusually high volume of leaks prior to the conclusion of the OCE's investigation, and the question has been raised as to whether the organization's transparency allows a high degree of harm to occur to members' reputations simply because they're being investigated.

One expert, Daniel Schuman of the Sunlight Foundation, brushes these complaints off. "They're afraid that if someone's under investigation, their names get smeared," Schuman told TheBLaze. "Of course, any time the police make an arrest, their names get smeared, so there are analogies. And OCE is very careful to say this isn't a declaration of guilt, this is just an investigation being done." However, others aren't so blaze. In fact, to many, such as Jeffrey Lord of the American Spectator, the whole business looks monstrously unfair:

What does all this mumbo jumbo actually mean for Congresswoman Bachmann?

It means there is a move afoot to smear Michele Bachmann in the media — with just the right touch of quasi-legal patina — so that her career is finished.[...]

We learn that the “OCE does not comment on ongoing investigations,” that a “senior attorney” for the OCE said he couldn’t confirm or deny the story, and an OCE board member, himself a former Congressman, said he “could not comment.”

The obvious question. If those connected to OCE are obviously not allowed to discuss the investigation with anyone — how does a story, an “exclusive” — make it to the Daily Beast in the first place?

Obviously, someone who has knowledge of the OCE and with an axe to grind against Michele Bachmann leaked the story. Or Daily Beast columnist John Avlon would not have his “exclusive” in the first place.

Lord's argument - that leaks of the kind that have been forthcoming in the Bachmann case render the OCE effectively a kangaroo court, designed to smear conservatives through media anonymity - is just one of many criticisms of the OCE. This February, a group of attorneys drafted a letter claiming that the organization frequently releases reports riddled with factual errors, that it doesn't allow those it is investigating to defend themselves adequately, and ignores certain forms of evidence. At the same time, watchdog groups have pushed back, claiming the issues with the OCE spring from its lack of power and calling for its ability to investigate to be increased.

So who's right, and what is the problem? Is it partisanship? Even if not, is the OCE capable of doing its job fairly? Is it actually an organization whose reports are riddled with factual errors, and which operates from an unfair presumption of guilt without allowing those who it investigates to defend themselves? Does the OCE constantly leak details before its mission is complete, thus handicapping its targets' political careers unfairly, with no effort to try and stop such a practice? Or is it a strapped office trying to enforce rules without adequate support, and thus necessarily handicapped, and are the complaints against it simply "sour grapes," as Schuman put it?

TheBlaze looked into these questions and found some answers that may interest you.

I. Is the OCE partisan?

While the ethics investigation against Rep. Bachmann may well spring from politically motivated actors trying to sabotage her career, when it comes to the record of the OCE, there is little to no evidence to suggest that the office targets people on a partisan basis. In fact, to the extent that such a bias has been argued about in the past, the OCE's main detractors have been die-hard liberals.

To begin with, since January of 2012, the OCE referred eight cases to the House ethics committee for further investigation. Of those eight cases, three were against Republicans and five were against Democrats. In 2011, the division slanted against a few more Republicans, with nine cases being investigated, of which five involved Republicans and four involved Democrats. On the face of it, these sorts of small differences in the number of cases referred by partisan ID suggest that the OCE does not discriminate by party.

Moreover, prior to the Bachmann case, the OCE's staunchest critics were a group about as far from Bachmann as it's possible to get, politically -- namely, the Congressional Black Caucus (CBC). In June of 2010, Politico featured a story pointing out that while a bipartisan group of legislators seemed to dislike the office, the CBC was spearheading the effort:

Members of the Congressional Black Caucus have led the charge, airing complaints about the aggressive, independent panel in a private session with House Speaker Nancy Pelosi last month, and they’ve drafted a resolution that, if approved, would severely curtail the panel’s power.

But there’s hot competition between the CBC and the official House ethics committee over who has less regard for the Office of Congressional Ethics, also known as the OCE. And the rest of the House doesn’t appear to be far behind in its disdain. Privately, Democratic and Republican lawmakers, and even some congressional leaders, acknowledge that there’s a strong sentiment to change rules that empower the office to publicize investigations and wreak havoc on lawmakers’ political lives.

Setting aside the merits of the CBC's complaints for the moment, any group that manages to irritate both the CBC and Michele Bachmann would appear to have no overt partisan agenda. There may be other issues, of course, but this does not seem to be one of them.

II. Is the OCE unfair in its investigations?

In an op ed for Politico from December of last year, William McGinley of Patton Boggs, who represents Rep. Bachmann in her ethics case, complained about several issues with the OCE's approach to investigations:

 Now that the Office of Congressional Ethics has been in existence for a couple of sessions of Congress, a sufficient record has been created demonstrating that changes are needed to increase the due process rights of subjects. Most people are surprised to learn that a subject of an OCE review is left in the dark during the entire OCE review process.[...]

The OCE rules should be changed to include a definition of “exculpatory evidence” that includes all evidence favorable to the subject, including information and evidence that tends to disprove the allegations against the subject or that tends to impeach the credibility of the accuser or a witness against the subject (such as inconsistent witness statements).[...]

The often irreparable reputational damage done to a subject by the mandatory release of a damaging report that may contain clear errors or that reaches an unjust conclusion requires the House of Representatives to take a close look at the OCE rules and reform the process.

TheBlaze reached out to McGinley for further comment, but did not receive a reply. However, as presented, his argument makes sense on one level - if a body is tasked with determining guilt, those representing the accused should be able to speak to that body directly.

On the other hand, according to Daniel Schuman of the Sunlight Foundation, that argument fails because its premise is flawed.

"OCE is not a tribunal. They're not the ones that are making the determination," Schuman told TheBlaze. "They're the ones seeing if there's enough evidence to determine whether an investigation is warranted. So they have a short period of time where they can investigate a matter and then refer it to the ethics committee for further investigation. It's not intended to be an adversarial system. Nevertheless, what you often see is members of Congress or their staff simply refuse to cooperate with OCE. They try to talk to people and people don't usually talk to them, and if they think there's enough information, they kick it over to the ethics committee."

By way of analogy, Schuman's argument suggests that allowing attorneys to address OCE hearings directly would be like allowing defense attorneys into police stations while investigations are still ongoing.

However, Schuman did acknowledge that there are problems with OCE's evidence, though his response to this problem was surprising.

"I haven't seen it happen, but it would not surprise me that they get facts wrong," Schuman said. "OCE doesn't have the power to compel testimony under the threat of perjury. Do they not have the full picture? Of course they don't. They only have a short period of time during the investigation. And they don't have the power to compel everyone to talk who needs to talk. But their goal is not to make a judgment on guilt. Their role is to see whether there's sufficient information to merit further investigation. The question isn't whether there's an error. There's a way to challenge an error before the ethics committee."

"If anything, that's an argument for strengthening OCE," Schuman concluded.

It's not clear that this interpretation of the OCE's role is completely correct, however. For instance, within the OCE's rules, it states that investigations should only be referred to the House ethics committee if "if it determines there is a substantial reason to believe the allegation(s) based on all the information then known to the Board. However, in the event the Office is unable to obtain information necessary to reach that determination, but the Board does determine there is probable cause to believe the allegations, the Board may refer the matter to the Ethics Committee for further review." In other words, while the organization might not be pronouncing guilt, it is pronouncing on the probability of guilt existing.

Nevertheless, Schuman, and those like him who work with watchdog groups, look at the criticism of the OCE from the CBC and others and see more craven political self-interest than genuine concern with ethics.

"I think these complaints are simply sour grapes," Schuman told TheBlaze. "I mean, nobody wants to have their name linked to an investigation, especially close to campaign season, but this isn't coming out of nowhere, there's usually enough information to make a kind of connection, and to enable outside groups to start digging into the matter."

And if there isn't? "The worst consequence of an investigation by the Ethics committee is political consequences or maybe a fine," Schuman said. "There's no criminal consequences. So treating it like a full fledged criminal proceeding doesn't make sense."

However, this last part of Schumans' argument may not be strictly accurate. One of the complaints against the OCE is that it sometimes acts in a way that is excessively high-handed. For instance, in 2009, the organization turned over one particularly large case concerning the defunct PMA lobbying group to the Justice Department, apparently without meeting the necessary prerequisites. Critics of the organization on both sides of the aisle have pointed to this case as an example of the OCE overzealously pursuing its mission, though it is worth noting that several prominent lawmakers ended up being exonerated as a result of the Justice Department's investigation. Nevertheless, one can see where anyone, Congressmen included, would want to be able to challenge facts that might potentially lead to a criminal investigation.

And even if no criminal investigation is ever brought up, this raises one final question: Can an OCE investigation ruin a politician's career, even if nothing comes out of it? Does the simple mention of such an investigation existing tar a politician's reputation?

According to Schuman, no more than normal. "They're afraid that if someone's under investigation, their names get smeared," Schuman said. "Of course, any time the police make an arrest, their names get smeared, so there are analogies. And OCE is very careful to say this isn't a declaration of guilt, this is just an investigation being done."

In one sense, Schuman's argument would seem to hold water. Most of the people implicated in ethics cases in 2012 survived the 2012 election, and their names would likely mean little to people outside their districts.

However, the danger of political damage is arguably magnified in marginal cases involving high profile figures like Bachmann. After all, most members of Congress don't have past Presidential runs or large amounts of detractors in the press to worry about. Such elements may complicate what would otherwise be a blunted issue in a more localized race, because national attention means more rigorous scrutiny by the press and also increased incentives for the two political parties to win the District for the sake of symbolic victory. As such, an OCE report based on flawed information could arguably lead to serious problems in a very specific subset of cases. This problem, however, is incidental to the political careers of certain politicians, and not evidence of actual malice or laziness on the part of the OCE, though it may reflect poorly on those who exploit the OCE's reports politically.

What might be evidence of malice, however, would be a rash of leaks from the OCE, and that might well exist in the case of Bachmann. Certainly, as Lord alleges in his article, someone must be leaking exclusive details about the investigation of her case if articles are appearing, and it might well be someone within the OCE. However, given that a number of former Presidential staffers of Bachmann's are involved, who would likely have longstanding relationships with the press, this is tricky to prove. Moreover, even if one partisan individual within OCE is leaking details -- presumably in order to get the press to sway the group's final conclusion -- that doesn't prove the organization as a whole believes in a partisan fashion. Indeed, it doesn't.

This is not to say that leaks aren't a problem. They are. In fact, in 2009, the OCE suffered a very comprehensive leak of a document that showed just how many politicians it had investigated that year -- a far larger number than had actually been publicly referred. Fortunately, there was no need to call for outside correction, as the OCE itself placed extensive security on its cyber-communications to prevent further such incidents. This suggests that the office is aware that leaks are damaging to its reputation, and acts to correct them to as great a degree as possible. Granted, leaking is endemic to Capitol Hill, but the decision to self-regulate in response to it suggests that this is a problem which the OCE itself would like to mitigate, not a deliberately malicious strategy by the organization.

Conclusion

So is the OCE an explicitly partisan group? No. Does it have issues with its investigations that might dampen the trust the public places in it? Possibly, though the solution to this problem isn't obvious. On the one hand, the concerns of those accused of wrongdoing suggest a need for heightened scrutiny over the whole ethics process, or perhaps for discretion at bare minimum. On the other hand, the concerns of transparency advocates over ethics investigations becoming toothless are substantial, especially if the toothlessness of the OCE is also responsible for its ineffectiveness at gathering evidence. If nothing else, one wonders if perhaps the Bachmann case will highlight this tension and allow for really effective reform.

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Mytheos Holt

Mytheos Holt

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