Watchdogs weigh in on ethics leak, blast House Committe

The joint statement below was co-authored by the Campaign Legal Center, Common Cause, Democracy 21, League of Women Voters,  Public Citizen and U.S. PIRG:

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.

Statement by Melanie Sloan, Executive Director of CREW:

“Time and time again CREW has called for investigations of unethical members of Congress, but our pleas seemed to fall on deaf ears. So, we were pleasantly surprised to learn the ethics committee is investigating so many members of Congress, but starting an investigation isn’t enough. The real question is whether any of the members under investigation will ever be held accountable for their conduct. The committee’s record on such matters is dismal. You have only to look back at the Mark Foley investigation — where all of America knew there was wrongdoing yet the committee found none — to be skeptical of the House ethics process. There’s not much reason to think anything has changed, but one can always hope.”

Statement by U.S. PIRG:

“Yesterday, we learned about the depth of work the Ethics Committee is engaged in, with at least two dozen members under investigation by the Committee. The increased activity is due in part to the good work and complete information the OCE is providing to the Committee,” said Lisa Gilbert, U.S. PIRG’s democracy advocate.

“U.S. PIRG has been engaged in improving the transparency and strength of the House ethics process, and we are pleased that yesterday’s accidental release indicates that more activity is occurring in the Ethics Committee than has been seen in recent years.”

“The new Office of Congressional Ethics (OCE) established by Speaker Nancy Pelosi (D-CA) to ‘drain the ethics swamp’ in the House of Representatives can take some very real credit for this increase in action,” she concluded.

Statement by Common Cause:

Common Cause today condemned a House Ethics Committee finding 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.”

The House Ethics Committee on Thursday asserted that no House rule
prohibits the creation of an appearance of a conflict of interest in
announcing its decision not to investigate Rep. Sam Graves (R-MO) for
inviting his friend and neighbor, Brooks Hurst, to testify before a
Congressional hearing on renewable fuels without mentioning that Graves’
wife and Hurst were investors together in renewable fuels plants in Missouri
at the time.

“The Ethics Committee has lowered the standard for Congressional
behavior to a new low,” said Common Cause President, Bob Edgar. “They have
now said Members of Congress are free to create the appearance of a conflict
of interest in their congressional work.”

The Office of Congressional Ethics (OCE), an independent body made
primarily of former members of congress, unanimously voted that the Ethics
Committee should investigate Rep. Graves for potentially creating an
appearance of a conflict of interest in selecting Hurst as a witness. The
Ethics Committee refused to do so.

Still, Common Cause was pleased to see in the accidental public
release of information regarding activities of the House Ethics Committee
and the Office of Congressional Ethics (OCE) that both panels appear to be
seriously pursuing their ethics responsibilities. The OCE appears to be
prodding the Ethics Committee to new heights of productivity.

Edgar called on the Speaker of the House and the Minority Leader
to clarify the rules of the House and the standard of conduct expected from
lawmakers.

“If the Congressional leadership does not want the American people
to think anything goes in Washington, they have to step in right now to
denounce what the Ethics Committee has said and clarify what the ethical
standards are for lawmakers,” Edgar said.