Nearly seven years ago, in the wake of the Jack Abramoff scandal, the House voted to establish an independent ethics body to investigate its members. The resulting Office of Congressional Ethics, which launched officially in January 2009, has won praise from ethics watchdogs for bringing transparency to the process.
But the office has one major weakness: It can't make anyone do anything.
A cadre of ethics watchdogs on Wednesday called on Congress to change that by granting OCE subpoena power. The watchdog groups, gathered in the Longworth House Office Building with members still out of town, included representatives from the Campaign Legal Center, Citizens for Responsibility and Ethics in Washington, Common Cause, and Public Citizen as well as congressional scholars.
Unlike the House Ethics Committee, OCE lacks the power to subpoena subjects of its investigations. Instead, the office must rely on voluntary testimony from members, their staffs, and outside groups, then refer cases that it finds have merit to the committee.
Over time, Campaign Legal Center Policy Director Meredith McGehee said, OCE has told watchdogs that its lack of subpoena power is becoming a problem. During the nearly six years since OCE began investigating House members and their staffs, the office has encountered a number of uncooperative witnesses. Several offices and outside groups, McGehee said, are "lawyering up and shutting up."
OCE's only recourse is to note that lack of cooperation negatively in its reports to the Ethics Committee, which is made up of 10 members of the House, and hope that the panel uses its own subpoena power to investigate—which rarely happens.
As CREW's Adam Rappaport noted, the Ethics Committee closed an investigation into a trip Reps. Peter Roskam, R-Ill., and Bill Owens, D-N.Y., took to Taiwan after two of the groups involved in arranging the trips refused to participate in OCE's inquiry.
The watchdogs would like to see Congress grant OCE unlimited subpoena powers, but also offered a compromise proposal: Allow OCE to subpoena solely outside groups like lobbyists and PACs, rather than members and their staffs.
Congress must decide in January, when it passes its rules for the next session, whether it will continue to support OCE at all—in addition to whether it will consider changes to the office's powers. Although House leaders have not responded to the watchdog groups' request to make OCE a permanent institution, it appears that the office will survive at least another Congress. Granting it subpoena powers is another question entirely.
"The OCE has been renewed in each of the last two Congresses and I have no information on any change in the next," Kevin Smith, a spokesman for House Speaker John Boehner, said in an email.
Similarly, Drew Hammill, a spokesman for House Minority Leader Nancy Pelosi, a major supporter of OCE, said that House Democrats would support "the continuation of the OCE."
"The creation of this body under the Democratic Majority, along with sweeping changes to House rules, remains critical to efforts to reform the way Washington works," Hammill said in an email.
Neither Hammill nor Smith would comment, however, on granting subpoena powers of any kind to OCE.
This isn't the first time that watchdog groups have asked to grant OCE subpoena powers. The issue was at the heart of fights over the office's creation in the first place. Members on both sides of the aisle pushed back, and OCE was formed without the power to subpoena, drawing the ire of watchdog groups.
Those same groups now praise OCE for bringing transparency to the ethics process. Neither the House nor Senate Ethics committees release much information on whom they are investigating, the status of their reviews, or why they are investigating a particular member or office. By contrast, if OCE recommends a case to the House Ethics Committee, then OCE's report is eventually released to the public, though the timing of that release depends on how the Ethics panel handles the case.
But watchdog groups would like to do even more by giving subpoena powers to OCE. And Congress should support them in that effort, McGehee argued. A stronger OCE could provide benefits not just for watchdog groups and concerned voters, but members of Congress themselves, she said.
"The whole point here is to be able to provide two things: One, [to give] the members of public confidence that allegations are being looked at and resolved fairly. And for the members, the ability to say, 'Look, somebody looked and I got a clean bill of health and therefore I'm fine,' " McGehee said of the creation of OCE. "And you really have to have an OCE that is strong enough to say, 'We have in fact looked at all the facts and we did not make a recommendation to move forward because we felt that the facts weren't all there.' We're a little bit caught in between at the moment because that 'clean bill of health' sometimes may not come about because they don't have the subpoena power to get all of the facts."
The groups present on Wednesday—as well as Democracy 21, Judicial Watch, the League of Women Voters, and others—have also called for the creation of an OCE-type organization for the Senate. Currently, the upper chamber has no corresponding office and its Ethics Committee has been criticized for an even greater lack of transparency than its House counterpart.
Eleven watchdog groups wrote a letter to Senate leadership last week calling for just that. Back in 2006, the Senate voted down a bill that would create a similar investigative body, with just 30 members supporting the measure. So far this Congress, there has been no movement in the Senate toward creating an independent ethics group like OCE.
Ethics watchdogs admit that Congress is going to need a big push to reverse course on giving subpoena power to OCE and creating a sibling organization in the Senate. It may even take another big scandal, they said. But of course, political scientist James Thurber noted wryly, one will come.
"We have to be realistic. This is not likely to happen unless and until there is a scandal of significant proportions, that it then becomes clear to a larger audience that the Senate has no ethics process," said Norm Ornstein, a scholar with the American Enterprise Institute. "What we want to do, I think as much as anything else, is to keep the pressure on. Now we've got a model and we know what works and what doesn't and what could be improved so that it's ready when the time comes."
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