• Processing of Shuster Complaint Has Apparently Been Halted For An Additional Five Months

Since the filing of the ethics complaint against Rep. Shuster five months ago, I am unaware of any action that the Committee has taken to investigate the substance of that complaint. The Committee has not publicly announced a preliminary inquiry into the Shuster complaint. Has the Ethics Committee requested a single document, other than response from Shuster, or interviewed a single witness in the case? Given the seriousness of the charges here, the Task Force and the public ought to find out. If there has been no action, how can the Ethics Committee justify this additional five month delay? According to a report from the Ethics Committee, "the respondent furnished the Committee with an answer after the House had adjourned sine die, and the Committee did not meet to consider these complaints."⁽⁴⁰⁾

Because the Ethics Committee is not expected to convene again until after April 11, 1997, no official action will likely be taken on the Shuster complaint until after then. Consequently, any House ethics investigation of Rep. Shuster will have been successfully forestalled for at least fourteen months after the Congressional Accountability Project first tried to file a complaint against him in February, 1996. Such delays are unjustifiable. Ironically, given the unwillingness of the Ethics Committee to investigate Rep. Shuster, federal prosecutors in Boston are reportedly investigating Rep. Shuster.⁽⁴¹⁾

• Further Action By Ethics Committee May Prevent Any Investigation of Shuster

Such "horse-trading" may be acceptable in legislative negotiations over appropriations. But the ethics process is supposed to be a quasi-judicial process, in which cases are judged on their own merits. Horse-trading in this context is just a blatant attempt to nullify the entire ethics process. In the Shuster case, it appears to have been part of an effort by Ethics Committee Republicans to improperly shield a fellow Republican against serious and well-documented allegations of wrongdoing.

RECOMMENDATIONS TO IMPROVE THE HOUSE ETHICS PROCESS

1. Send Complaints Routinely to Outside Counsel for Investigation

The House should adopt a rule requiring the appointment of an outside, independent counsel whenever there is sufficient evidence to believe that a material violation of a rule, statute, or standard of conduct applicable to a member of Congress may have occurred. The formalization of that policy would solve most ethical dilemmas posed by the self-regulation of Congressional ethics.

The United States Constitution is grounded in the notion of the "rule of law." John Adams stated that our republic is a "government of laws and not of men." The aspiration is that rulers and the ruled should face equal justice before the law, and that no person should be above the law. As a society, we try to meet this aspiration -- to protect the integrity of investigative and prosecutorial functions against incursions by interested parties -- by assuring the independence of judges, prosecutors and juries.

Following the Ethics Committee's dismal performance in the 104th Congress, it is clear that sometimes the Ethics Committee will be unable to conduct a dispassionate, impartial investigation of an ethics matter. To avoid this problem, and the perception of it, the Ethics Committee's investigatory function should be carried out by an independent outside counsel once there is enough evidence to believe that a material violation may have occurred. Absent such an independent investigation, there may not be an adequate written "record" developed upon which members of Congress may ultimately make decisions concerning possible levels of sanction.

When a member of Congress is charged with ethical violations, the Ethics Committee members are called on to investigate their colleague. Can they really be expected, during the investigatory phase, to put aside all their personal feelings of loyalty, affection, or antipathy, or their concerns about the consequences of their decisions for the political agenda they seek to further or the party to which their own futures are tied? Can they really be expected to set aside the prospect of appreciation and support from colleagues in return for favorable action, or the opposition or even retaliation which may result from supporting actions which may harm the political career and reputation of a colleague? Since members of Congress are merely human, the likely answer is that some will have the extraordinary strength of character required to remain objective in these difficult circumstances, and that others will not. Equally important, it is critical that the ethics process be perceived by the public to be fair and objective. Otherwise, respect for the Congress will be further eroded, and those members of Congress who have been unfairly accused of violations will find that investigation and subsequent exoneration by the Committee is insufficient to lift the cloud of ethical charges brought against them.

Such is the logic behind the use of outside counsel in Congressional ethics proceedings. But the use of outside counsel, though somewhat established in the House, is not a matter of course, as it should be. This places the ethics process and the "rule of law" in some jeopardy. Sadly, the "rule of law" is plainly vulnerable to conflicts of interest, manipulations, and abuse. James Madison argued that "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgement, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time..."⁽⁴⁵⁾ Madison's words ring true for the current House ethics process. As presently configured, it is susceptible to improper influence, and conflicts of interest.

Ethics Committee members are sometimes subject to conflicts of interest because the respondent and their political opponents all possess the incentive, and sometimes the ability, to influence Committee members. Members of Congress are not neutral parties in a Congressional ethics investigation.

These procedural inadequacies subvert the moral legitimacy of the House ethics process. Some Ethics Committee rulings and outcomes are susceptible to the charge that Ethics Committees do not properly enforce the law or Rules constraining members of Congress. This taints the integrity and moral authority of the entire Congress. And it weakens the moral force of exoneration by the Ethics Committee.

Then there is the problem of the inadequate authority of Congressional ethics staff. In Congress, the relationship between staff and members is almost uniformly that members are the bosses, and staff accept their orders. Ethics Committee staff lack the independence to provide definitive rulings about their superiors. Without this independence, it is difficult or impossible for staff to accomplish the task with which they are charged.

Ethics Committee staff do not necessarily have the capacity or the expertise to engage in a time-consuming fact-finding effort. Nor can they quickly assemble an ad hoc crew of investigators to quickly and efficiently develop a thorough factual record for the Ethics Committee.

Unlike every other Congressional committee which considers legislation affecting classes of persons or entities, the Ethics Committees decide actual individual cases -- it is judicial-like in function. In that sense, the staff who investigate and make recommendations for disposition are investigating their employers -- Members can hire and fire them at will. That is an untenable position in which to place staff and can further erode public confidence in the result -- whatever it is. It is for this additional reason that the House and Senate Ethics Committees have retained prominent outside counsel to insulate the staff from pressure or the appearance of pressure.

When the Congress acts like a court, it ought to adopt at least the rudiments of judicial process. The Congressional ethics process is clearly of a judicial nature. Such rudiments of judicial procedure were notably absent from the House ethics process during the 104th Congress, as described above.

Nothing in this testimony contests the responsibility of the Congress, under Article 1, Section 5 of the United States Constitution, to "determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member." The function of an outside counsel in House ethics cases should be limited to the investigative role. All decisions concerning whether ethical violations have occurred and levels of sanction, if any, to be imposed should remain firmly within the control of members of Congress.

The Congressional Accountability Project recommends that when a new ethics case is brought to the attention of the Ethics Committee, either the Chairman or the Ranking Minority Member of the Committee may make the determination that there is sufficient evidence to believe that a material violation of a rule, statute, or standard of conduct applicable to a member of Congress may have occurred. Once such a determination is made, then an outside counsel should be chosen by random selection from a pool of potential outside counsels. These referrals should be made routinely. They should be understood as ordinary, unremarkable, and certainly not any indication of the guilt or innocence of the respondent in the ethics matter.

Former outside counsel Richard Phelan wrote that "the very integrity of Congress depends on its ability to police itself. In most cases, our elected representatives have determined that justice can only be done when an outside counsel -- an independent lawyer who can investigate allegations of wrongdoing and stand up to powerful politicians -- is assigned to the inquiry."⁽⁴⁶⁾

Adopting the policy of appointing outside counsel in House ethics cases would greatly strengthen the integrity of the Congressional ethics process.

2. Eliminate Unnecessary Delays in the Initial Phases of the Ethics Process

The House of Representatives should change House Rules to prevent the needless delays in the initial phases of the ethics process. Such delays occurred in processing some of the Gingrich ethics complaints, as well as the DeLay and Shuster complaints. The House should approve a rule requiring that any complaint not dismissed within thirty days should be sent to outside counsel for preliminary inquiry. Preliminary inquiry conducted by outside counsel should become a routine part of the ethics process in the House.

In the Gingrich case, one of the principal sources of delay was the inability of the Committee to decide on whether to send allegations to outside counsel.⁽⁴⁷⁾ Such extended arguments about whether to initiate a preliminary inquiry serve no constructive purpose within the ethics process. As Rep. McDermott explained,

'Last year I spent 200 hours in [ethics committee] meetings. That's not why I came to Congress. I came here to work on trade, AIDS research, health care and a whole slug of things

'Instead we spend endless hours wading through this stuff and then come up with an inadequate finding. That makes congress look bad. That makes us look bad.'⁽⁴⁸⁾

Such extended arguments about whether to initiate a preliminary inquiry or send complaints to outside counsel for investigation have wasted a great deal of Ethics Committee members' time during the 104th Congress. Members' time is far too valuable to spend on micromanaging ethics investigations. Rather, once a complaint is found to crest a low threshold of credibility and seriousness, it should be sent, automatically, to outside counsel. Such a procedure would reduce Ethics Committee members workload as it increases public confidence in the ethics process and the Congress in general.

3. Eliminate Barriers That Prevent Citizens from Directly Filing Ethics Complaints

Perhaps the most serious flaw in the current House ethics process is the difficulty of initiating a thorough, impartial investigation against a member of the House of Representatives. The House has erected procedural barriers which make it difficult for Americans to initiate an ethics investigation against a House member. House Rule 14 requires an outside group to obtain a letter of transmittal or three letters of refusal to file a complaint. That rule is partially responsible for preventing ethics investigations of Reps. Bud Shuster and Tom DeLay in the 104th Congress.

House members prefer not to file ethics complaints against one another. The strong institutional disincentive to filing ethics complaints exists because members constantly need each others' assistance. The effect of this disincentive is to discourage investigations of credible allegations of violations of House Rules or federal law.

Because of the degraded nature of the House ethics process and the increasingly partisan atmosphere in the House, Democrats file complaints against Republicans and vice-versa. Members do not file against members of their own party. Similarly, during the 104th Congress, the Ethics Committee has shown little inclination to initiate an investigation against powerful House Republicans, including House Transportation Committee Chairman Bud Shuster, and House Majority Whip Tom DeLay.

Consequently, much of the burden for preparing ethics complaints -- to force initiation of the ethics process -- now falls on non-House groups like the Congressional Accountability Project. But the history of the 104th Congress, as described above, shows that it is increasingly difficult for non-House groups to transmit ethics complaints to the Ethics Committee. For outside groups, the problem of simply initiating the most basic ethics inquiry may take months of effort, if it is possible at all.

These delays serve the public poorly for several reasons. First, they needlessly prolong the period of time during which a member of Congress can engage in corrupt or blameworthy conduct. Second, delay nearly invariably helps the respondent, because as time passes, witnesses may forget and documents may disappear.

The House should change Committee Rule 14 to eliminate the unnecessary barrier of obtaining a letter of transmittal or three letters of refusal from House members. The House should simply adopt the Senate Select Committee on Ethics' rule which allows citizens to file directly, without needing letters of transmittal or refusal.

UNSWORN ALLEGATIONS OR INFORMATION:..any other person may report to the Committee, any credible information available to him or her that indicates that any named or unnamed Member, officer, or employee of the Senate may have --

(1) violated the Senate Code of Official Conduct;

(2) violated a law;

(3) violated any rule or regulation of the of the Senate relating to the conduct of individuals in the performance of their duties as Members, officers, or employees of the Senate; or,

(4) engaged in improper conduct which may reflect upon the Senate.⁽⁴⁹⁾

Representative Porter Goss has been promoting ethics "reform" proposals, some of which would likely prevent investigation and enforcement of House Rules and federal law by members of the House of Representatives. Rep. Goss's proposals are complex and include several parts. Most objectionable are his proposals to make it more difficult for Americans to file ethics complaints in the House of Representatives, either by fortifying the already large barriers preventing outside groups from filing ethics complaints, or by threatening members with punishment for the filing of complaints. If approved, they would likely cause de facto non-enforcement of ethics rules in the House of Representatives. That would likely induce a climate in the House of Representatives where corruption, abuse of power, and influence peddling would be increasingly feasible.

4. Punish Members Who Break House Ethics Rules

During the 104th Congress, the Ethics Committee did not punish a single member of Congress, other than to issue letters of reproval. By failing to punish House members for their violations of House Rules and wrongdoings, the Ethics Committee set an extremely bad precedent. The import is this: that members of Congress who repeatedly break rules will escape unscathed from Ethics Committee action. Such a precedent is highly destructive to the Ethics Committee, and to the Congress.

The House of Representatives and its Ethics Committee should not tolerate violations -- and especially repeat violations -- of ethics rules by House members. House members should be placed on notice that those who violate ethics Rules will be punished, not merely with letters of reproval, but with reprimand, and in serious cases involving repeat offenders, censure or expulsion.

The Ethics Reform Task Force Should Hold Public Hearings To Inquire Into The Internal Procedures of the Ethics Committee During the 104th Congress

Much has been written about the ethics process during the 104th Congress. But, members of the Ethics Committee during the 104th Congress have said little of substance in public about the precise details of Ethics Committee standard operating procedures and activities. This makes no sense whatsoever. The American people deserve a description of the standard operating procedures of the House ethics process, so they can decide for themselves whether the process is adequately vigorous, and what can be done to improve it.

The House Ethics Reform Task Force should depose under oath former Ethics Committee Chairman Nancy Johnson, former Ranking Minority Member Jim McDermott, former Ethics Committee members Porter Goss and Ben Cardin, and chief counsel Ted Van Der Meid to inquire how the Ethics Committee actually works on a day-to-day basis. The Task Force might ask questions such as:

• Precisely what does the Committee do when it "investigates" a complaint?
• Precisely what did it do when it "investigated" each of the complaints against Speaker Gingrich?
• Under what circumstances does it attempt to independently verify facts alleged in a respondent's statement?
• Under what circumstances does it accept as true on faith any facts alleged in a respondent's statement?
• According to the March 29, 1996 Ethics Committee letter to Speaker Gingrich about the first Donald Jones complaint, "the Committee...considered your [Gingrich's] response of December 22, 1995, which included an affidavit of Donald Jones, and letters from Daniel Meyer and Jack Howard of your staff." The New York Times reported that aside from this submitted testimony, "no one was questioned, and no documents were requested."⁽⁵⁰⁾ Why did the Committee investigate the first Donald Jones complaint so poorly?
• Was the investigation of the first Donald Jones complaint typical for a House ethics "investigation"?
• What was the extent of "horse-trading" on ethics matters during the 104th Congress?
• Why did the Committee refuse to release the letter of reproval against Rep. McIntosh?⁽⁵¹⁾
• Why did the Committee take so long to send part of the Ben Jones complaint against Speaker Gingrich to special counsel for investigation?
• How did members of the Committee vote each time a motion was made to send a complaint to outside counsel for investigation?
• How did the Committee justify its failure to punish the Speaker before January 1997, even though it found the Speaker to have repeatedly violated House Rules and engaged in other blameworthy conduct?