Is it that there’s a new sheriff in town, here to save the GOP from its penchant for self-destruction – or at least to stop the bleeding earlier than usual? Is it an incoming Republican administration versed in the art of Clintonian triangulation against its own party in Congress? These questions will be answered in due course after January 20. For now, suffice it to say that President-elect Donald Trump induced House Republicans to reverse their politically inept decision to trim the sails of an independent ethics panel.
Tuesday morning, Trump tweeted out his displeasure at the GOP conference’s unilateral decision, on the eve of the new Congress, to rein in the powers of the Office of Congressional Ethics, an unelected in-house watchdog. Or as the New York Times hyperbolically put it, to “gut” the OCE. Though the tweeted rebuke was mild by Trump standards, it helped raise the volume of hysteria already pouring out of the Left, portraying the Republican move as a harbinger of unprecedented corruption. Following Trump’s tweet, House leaders scrambled to convene an emergency conference meeting, at which the ethics proposal was scrapped before the new session commenced.
Before the story dies a welcome swift death, it is worth pointing out that the GOP’s bad politics was actually good policy, and certainly not corruption.
To be sure, one can only shake one’s head at the GOP’s all too familiar ham-handedness. Republicans have an ambitious agenda now that they control both chambers of Congress and the White House. Yet, they allowed themselves to be portrayed as prioritizing – over the repeal of Obamacare, tax reform, and a host of significant initiatives – a watering down of ethics protocols ostentatiously adopted in 2008, when Democrats were making hay over Republican corruption scandals. Monday night’s OCE gambit – pushed over the objection of Speaker Paul Ryan by a bloc led by Judiciary Committee Chariman Bob Goodlatte (R., Va.) – was a unilateral GOP move, taken in the course of voting on rules for the new session. Naturally, the media-Democrat echo chamber pounced, accusing Republicans of meeting in secret to grease the wheels of graft.
It is not true, but Republicans have only themselves to blame. Was it really necessary to do this, and, of more moment, to do it now? That was the thrust of Trump’s tweet-burst. While allowing that the “Independent Ethics Watchdog,” as he called it, may be “unfair,” Trump expressed bafflement at the timing: The very start of the session, after a bruising campaign in which public outrage over Washington establishment self-dealing took center stage – a point Trump emphasized by ending the tweet with his signature hashtag “#DTS” (“drain the swamp”).
What Republicans were trying to do, however, was far more modest than the headlines imply. The timing aside, moreover, it was appropriate as a matter of policy.
The OCE, which is of such immense significance you’ve probably never heard of it before yesterday, is a committee of unelected citizens created in 2008. The Democrats had taken control of the House in 2007 and were continuing to exploit such corruption debacles as the Abramoff lobbying scandal then roiling the GOP – certainly fair game. But they structured the OCE as a constitutional anomaly, accountable to no one. While the media-Democrat complex is pleased to frame this particular instance of unaccountability as “independence,” note that it typically pines for checks and balances in those instances when the law permits independent action by Republican office-holders – compare, e.g., the commander-in-chief’s constitutional power to determine who is an enemy combatant (story line: bad – checks and balances required), with the Dodd-Frank-created Consumer Financial Protection Bureau (storyline: good – much-needed independence).
In any event, the OCE is comparable to the Civilian Complaint Review Board, which investigates allegations of misconduct against New York City police officers; or a grand jury, which decides whether there is enough evidence to warrant a trial before a court, with all the due process protections that implies. The OCE is empowered to probe complaints about unethical behavior, no matter how anonymous or baseless. If it finds what it judges to be evidence of bad ethics sufficient to warrant congressional inquiry and potential sanctions, it may refer the matter to the House Ethics Committee. Totally reasonable. After all, the Ethics Committee is designed to conduct investigations and ensure that action is taken in a worthy case, but also that a lawmaker who is the subject of a complaint is protected against frivolous or manufactured allegations.
In contrast to the OCE, the House Ethics Committee is composed of five elected members of Congress from each party. That is, unlike other congressional committees, it is evenly bipartisan regardless of which party controls the House. The accountability of its members to voters, plus the equal strength of the opposition party to call fouls, provides insurance against such abuses of the process as accusations of ethical lapses motivated by partisanship rather than compelling evidence. As elected representatives, Committee members are also sensitive to how devastating empty allegations can be – they know that many voters (to say nothing of competing candidates running political ads in campaigns to unseat incumbents) would focus more on the fact that a member is being investigated by a body called the “Ethics Committee” than on whether the investigation actually turned up any ethically questionable behavior.
The Committee thus operates under rules geared to provide due process and a fair degree of confidentiality (just as a grand jury operates in secrecy by law unless and until it brings public charges). At the same time, when a violation is substantiated, the Committee may refer the case to law-enforcement and recommend that sanctions be imposed by vote of the full House. Sanctions range from a mere fine to reprimand, censure, and – in the most serious cases – expulsion from the House.
If OCE referrals to the Ethics Committee were all there was to it, Republicans would have no gripe. But of course, that’s not all there is to it. The OCE may refer matters to the Ethics Committee, but it is not under the supervision and rules of the Ethics Committee. When they created the OCE, Democrats also enabled it to employ a publicity arm. While this delights the media, it smacks of politics not proper investigative practice. The license to publicize unproven allegations that are not even the subject of formal court or congressional process has a high potential for abuse – particularly in the hands of a body that answers to no one and takes anonymous tips that may be based on nothing but rumor or venom. (Compare, e.g., the unrepentant Harry Reid’s false claim that Mitt Romney was a tax dodger.)
Such irregular inquiries can damage investigations being conducted by law enforcement – as Jim Geraghty notes at National Review, the Justice Department has, on at least one occasion, asked the House Ethics Committee itself to stand down for fear that a congressional probe would harm a corruption case being developed by federal prosecutors. The congressman, Michael Grimm (R., N.Y.), was ultimately indicted on 20 counts of fraud, perjury and tax evasion, pled guilty in a plea bargain, was sentenced to eight months in prison, and resigned in disgrace before he could be expelled. As Jim rightly illustrates, it’s not like no action is taken if Congress is too passive. (I can tell you from personal experience: Nothing gets a prosecutor’s motor running like a corruption investigation – and nothing gets the Justice Department more frustrated than congressional doddering over witnesses and evidence when the FBI is trying to do real police work.)
Moreover, the OCE was authorized, under the guise of being a quasi-congressional body, to refer allegations to law enforcement agencies, notwithstanding that these were not actually congressional referrals – again, because the OCE was not actually operating under the authority of any congressional committee.
The proposed GOP reforms were not going to “gut” the OCE. Under the proposal, however, it would be brought under the oversight of the Ethics Committee, as it should have been in the first place. The OCE would be rebranded as the “Office of Congressional Complaint Review”; it would not (a) have a public-information arm, (b) be authorized to investigate anonymous tips, and (c) be permitted to refer cases to law-enforcement without authorization from the Committee.
Meanwhile, corruption investigations would go on, as they always have. On that score, as Jim Geraghty further details, the OCE appears to have been little in the way of value added – if it were otherwise, you’d have heard about its work before today. In the last six years, it has conducted a shade over 100 reviews and referred less than half of them to the Ethics Committee for further action.
In sum, Republicans had very good reasons to strip the OCE down to something that was more constitutionally sound in a system of divided powers based on political accountability. The reason the Washington swamp needs draining is that there are already too many unaccountable bureaucrats wielding too much power. But yes, in the greater scheme of things that are wrong, the OCE is a trifle. To prioritize its reform, and to do so unilaterally and without making the public case for it was, well, dumb.