Testimony of Gary Ruskin,

Director of the Congressional Accountability Project,

Before the House Ethics Reform Task Force,

March 4, 1997

Thank you for allowing me to testify today before the House Ethics Reform Task Force.

Following nearly two years of turmoil in the House ethics process, Majority Leader Dick Armey (R-TX) and Minority Leader Richard Gephardt (D-MO) appointed this task force to review the House ethics process, and devise a process that better serves the citizenry and our democracy.

The House Committee on Standards of Official Conduct ("Ethics Committee") is responsible for protecting the public against corruption in the Congress, and members of Congress who violate House Rules and the public trust. The Committee must investigate possible violations with diligence and punish wrongdoers, if the ethics process is to protect the public and our democracy.

Unfortunately, The Ethics Committee has become a device to shield members from meaningful scrutiny. It has become an institutional impediment to fair, thorough investigations of credible allegations of wrongdoing. The Ethics Committee has repeatedly shown a liberal permissiveness towards offenders against House Rules. As such, it serves the American people poorly. If the American people are to have confidence in the Congress, they will need to know that the Ethics Committees of Congress are working strenuously to identify, investigate, and punish corruption.

This hearing takes place following the near-total meltdown of our federal campaign finance laws. Consequently, the effort to curtail legislative corruption is at a critical stage. During the 1996 election cycle, changes in law and "innovative" fundraising strategies by the major political parties have, for all practical purposes, deregulated the financing of Congressional and Presidential campaigns. The Federal Election Campaign Act has collapsed. This is a great loss for citizens. Furthermore, the Federal Election Commission, which is charged with overseeing and enforcing federal election law, has been rendered a poorly funded, nearly toothless watchdog agency by members of Congress, some of whom do not wish to have vigorous policing of our federal campaign finance laws.

The Ethics Reform Task Force can advocate for strengthening the public's protections against congressional corruption and wrongdoing, and revive the moribund Ethics Committee. It could, however; further dampen the already enfeebled enforcement of ethics Rules. This could open new avenues for corruption and the purchase of influence in the Congress.







In general, four principal reforms are needed to restore public confidence in the ethics process:

The House ethics process is a constitutionally mandated responsibility of the U.S. House of Representatives. Article 1, Section 5, of the United States Constitution states that both the House and Senate should "determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member."

Functionally, the purpose of the ethics process is to protect both ordinary citizens and our Congress itself against corruption, influence peddling, and abuse of power. This is an extremely important function. The institutions of our democracy are far removed from the daily experience of most citizens and are easily susceptible to corruption in all its forms. The ethics process is the last line of defense against such forms of corruption.

The Ethics Committee is supposed to investigate possible violations vigorously, and punish members who engage in conduct which is destructive of our democracy. But evidence from the 104th Congress indicates that the Committee has failed dismally to fulfill its responsibilities to the House of Representatives and to the American people.

THE ETHICS PROCESS IS BROKEN:

EVIDENCE FROM THE 104TH CONGRESS

The House ethics process during the 104th Congress collapsed under the weight of its manifold failures. Those failures become sadly and egregiously evident in the following ethics cases.

Representative Barbara-Rose Collins

In October, 1995, the Congressional Accountability Project tried to file an ethics complaint against Rep. Barbara-Rose Collins (D-MI) for use of Congressional staff and other official resources for personal and campaign activities, and improperly accepting monies from a scholarship fund intended for disadvantaged students from her Detroit district.(1) Under House Committee on Standards of Official Conduct Rule 14, persons who are not members of the House of Representatives may file an ethics complaint only with a letter of transmittal from a House member or three letters of refusal from such members. The Congressional Accountability Project was unable to obtain either a letter of transmittal or three letters of refusal in this case from any House Republican, even though the media had already published articles containing serious allegations against Rep. Collins.(2) The Congressional Accountability Project contacted 25 House Republicans, but all refused to transmit the complaint.(3)

Following a wave of media attention to the Collins matter, the Committee did initiate an investigation. This was the only Committee-initiated investigation during entire 104th Congress. Former Rep. Collins is a black female Democrat, and was one of the least influential members of the 104th Congress. Perhaps that is why the Ethics Committee was able to muster the gumption to begin an investigation of her. Subsequently, the Department of Justice also initiated it's own investigation, which is ongoing. Rep. Collins lost her primary election last year.

The Collins case shows how difficult it is for ordinary citizens to initiate an ethics complaint under the cumbersome rules that seem designed to encourage stonewalling rather than accountability.

House Majority Whip Tom DeLay

Beginning in February, 1996, the Congressional Accountability Project tried to file an ethics complaint against House Majority Whip Tom DeLay (R-TX) regarding possible corruption and influence-peddling, based on detailed articles from major news outlets.(4) During the next seven months, the Congressional Accountability Project contacted forty-nine House Democrats and an Independent(5) in an attempt obtain a single letter of transmittal or three letters of refusal. In September, the Congressional Accountability Project was still unable to obtain a letter of transmittal, but did obtain three letters of refusal, and filed the complaint.(6) A September 9, 1996 editorial in Roll Call pointed out the effect of the lengthy holdup:

With only two months left until the election, enough Members have just come forward to launch official ethics complaints against Reps. Bud Shuster (R-Pa) and Tom DeLay (R-Texas), even though evidence against the two has been building for more than a year. This reluctance to act contributes to the public's belief that influence-peddling is a bi-partisan way of life on Capitol Hill.(7)

Since the filing of the ethics complaint against Rep. DeLay 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 DeLay complaint. According to a report from the 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."(8) Apparently, the Ethics Committee has not requested a single document, other than response from Rep. DeLay, or interviewed a single witness in the case. If that is true, how can the Ethics Committee justify this five month delay?

No official action will likely be taken on the DeLay complaint until sometime after April 11, 1997, when the Task Force makes its recommendations regarding the ethics process. Consequently, any House ethics investigation of Rep. DeLay won't begin until at least fourteen months after the Congressional Accountability Project first tried to file a complaint against him in February, 1996. That is institutional stonewalling of near-Watergate proportions; it does a great disservice to the American people.

The Ethics Committee has invented a new maneuver which amounts to a pocket veto of ethics complaints. Unresolved complaints left pending at the end of the Congress now expire at the end of the Congress. That is a new and cravenly self-serving policy. According to Ralph Lotkin, former chief counsel to the Committee, "The longstanding policy of the committee is that complaints survive from one Congress to the next."(9) If the Ethics Committee does not move to carry over the DeLay complaint to the 105th Congress, it could be difficult for anyone to resurrect. It took seven months to file the complaint -- even by the route of getting three letters of refusal. If the House were to eliminate the letter-of-refusal route, as Rep. Porter Goss (R-FL) has proposed; or if it were to erect any new barriers to Americans who wish to initiate ethics complaints, it would be almost impossible for the Congressional Accountability Project or anyone else to refile the complaint against Rep. DeLay.

Speaker Newt Gingrich

The Ethics Committee repeatedly and grievously faltered in its duties to undertake professional, competent, timely investigations in the ethics complaints against House Speaker Newt Gingrich. It was an abysmal performance. These failings included:

Donald Jones was a telecommunications entrepreneur and major GOP donor whom the Speaker allowed to work on legislative issues involving that industry in the Speaker's offices. Jones even had an official Congressional ID. Paul Davis, the attorney representing Donald Jones's former partners, sent a letter to Ethics Committee Chairwoman Nancy Johnson, and Ranking Minority Member Jim McDermott on March 6, 1996, conveying the willingness of his clients to provide testimony about Jones's activities within the Speaker's office. That letter stated that his clients:

have information that will help to ensure that their actions are not cast in a false light and that the Members of your Committee are not mislead in their investigation of the case involving Donald G. Jones. They are willing to cooperate in appropriate ways to ensure that the truth is revealed.(10)

On April 4, 1996 Roll Call reported that subsequent to the March 6 letter:

Davis told Roll Call that he was contacted by Rep. Jim McDermott (D-Wash.), the ethics panel's ranking member, who inquired about the evidence Davis had. McDermott told Davis to collect the information and send it to ethics Chairwoman Nancy Johnson (R-Conn). Davis said he prepared a packet and sent it to Johnson but never received any communication from her or the ethics committee staff.(11)

The packet sent by Davis to Chairwoman Johnson contained, according to Roll Call, "evidence, including documents and phone records, that demonstrated that Jones was working on telecommunications issues for the Speaker." It also contained a cover memorandum that stated:

My clients are prepared to provide information concerning the business activities of Mr. Jones during the period that he was operating out of the office of Speaker Gingrich. In effect, they are prepared to provide specific substantiation for claims included in the attached Jones memo.(12)

One would think that such a memorandum would get the attention of the Chairman of the House Ethics Committee. Here was evidence from two sources regarding a breach of ethics by the Speaker of the House. But Ethics Committee Chairman Nancy Johnson never pursued this lead. She never sought testimony from either or Davis's clients, Tim Brown and Jeff Coleman. The Hartford Advocate quoted Coleman stating:

'As far as I know, Nancy Johnson isn't even alive....No one from that committee, Johnson, McDermott, [Special Counsel James] Cole -- has ever contacted either Mr. Brown or myself.'(13)

This failure calls into question the sincerity of the Ethics Committee investigation of the Donald Jones matter. There is no plausible explanation for the Ethics Committee not bothering to ask Brown and Coleman for their testimony -- unless the Committee just didn't want to know.

On April 22, Roll Call reported on the contents of a new Donald Jones memorandum that the Ethics Committee apparently did not know about until after its investigation was completed:

Jones, whose controversial role as a quasi-Gingrich staffer advising the Speaker on matters in which he had a business interest...wrote in a memo that he told the Speaker "about concerns that entrepreneurs have making investments facing the possibility of government controls and cited Cam, Atlanta, and MindSpring."

Cam refers to Campbell Lanier, a Georgia telecommunications mogul....Lanier and his family have been generous to Gingrich, providing more than $56,000 over the past five years to Gingrich's campaign and GOPAC...(14)

Why did the Ethics Committee not obtain this memorandum until after it had issued its March 29 ruling in the Donald Jones matter? Why did the investigative failure occur? The Seattle Times reported in on April 25, 1996 that then-Ranking Minority Member said that he

never saw the memo and didn't know of its existence when he was deciding what action to take against the Speaker.

'Had I known about it, I'd have had a good deal more to say about what was going on,' McDermott said.(15)

Equally enigmatic is the failure of the Ethics Committee to obtain the notes of House leadership meetings on telecommunications legislation and the Speaker's meetings with industry executives to determine whether in fact Donald Jones was present at the meetings, or how he may have participated. The Ethics Committee could not possibly have evaluated Donald Jones's claim to have attended these meetings on telecommunications legislation without reviewing contemporaneous notes of the meetings.

According to the March 29, 1996 Ethics Committee letter to Speaker Gingrich, the Committee considered responses from Gingrich, Donald Jones, and two members of Gingrich's staff, Daniel Meyer and Jack Howard. However, The New York Times noted that -- incredibly -- aside from this submitted testimony, "no one was questioned, and no documents were requested."(16) That was the extent of the investigation of the Donald Jones matter. Members of the public can be excused for feeling that members of Congress are less than ardent about upholding their own ethics rules.(17)

Regarding the second complaint filed by the Congressional Accountability Project regarding the Donald Jones matter, The New York Times wrote,

The new complaint might not have been necessary had the House Ethics Committee bothered to discover exactly what Mr. Jones did in Mr. Gingrich's office before it gave the Speaker the mildest of reprimands for violating House rules limiting the use of volunteers....

It appears the committee simply accepted the version of events provided in secret statements by Mr. Gingrich's office and Mr. Jones.(18)

Similarly, a Roll Call editorial opined that:

There's no excuse for the incomplete investigation the House ethics committee conducted into the activities of telecommunications entrepreneur Donald Jones in the office of House Speaker Newt Gingrich (R-Ga), which resulted in a slap on Gingrich's wrist last week.(19)

Several of the complaints filed against the Speaker were met with inexcusable delays from the Ethics Committee. For example, the initial Ben Jones complaint is dated September 7, 1994. It was amended on January 26, 1995. But the Ethics Committee did not decide to appoint special counsel to investigate allegations against the Speaker -- namely, the misuse of foundation monies for partisan political purposes -- until December 6, 1995. That is a delay of fourteen months. An Ethics Committee that took its mission seriously would move more quickly than that.(20)

The holdup in processing Rep. Bonior's GOPAC complaint was equally unjustifiable. That complaint was filed on December 14, 1995, as an amendment to a previous complaint. The Committee then rejected the amendment to the complaint -- apparently for no other reason than that it was an amendment -- six weeks later, on January 25, 1996, in apparent violation of the Ethics Committee's own "five-day" rule.(21) That forced Bonior and others to refile the complaint, which they did on January 31, 1996.(22) On September 28, 1996, after eight more months of delay, the Ethics Committee notified Speaker Gingrich that it "is in the process of obtaining additional information" concerning four parts of the complaint.(23) Four months later, and over thirteen months after the filing of the initial complaint, Congressional Quarterly quoted Ethics Committee Chief Counsel Theodore Van Der Meid stating that "Technically, everything is over....It's not a live complaint."(24) This strategy of killing complaints by interminable delay is unacceptable in a democracy.

For many months at the start of the ethics process concerning the Speaker, the Ethics Committee did barely any investigative work. On June 29, 1995, The New York Times reported that:

With less than a week until the deadline its head had set for disposing of the charges against Speaker Newt Gingrich, the House ethics committee has yet to question many of the most obvious witnesses about a college course Mr. Gingrich taught, a book contract or other allegations of misconduct.

Spokesmen for the political action committee Mr. Gingrich headed and the college where he taught a course that has been criticized as an illegal, partisan use of tax-exempt funds said no information had been sought from them. So did a publisher who publicly charged that the original $4.5 million deal for Mr. Gingrich's book was improper, and a business organization from which Mr. Gingrich was accused of improperly soliciting personnel.(25)

The Ethics Committee found that Speaker Gingrich violated House Rules by allowing Joseph Gaylord, a political consultant, to perform official congressional work. The Committee wrote Speaker Gingrich that it

has found that your use of Mr. Joseph Gaylord was in violation of House Rule 45...Specifically, the Committee found that Mr. Gaylord's activities during the transition of interviewing prospective staff violate our rules and that his regular, routine presence in congressional offices, while in and of itself not a violation of House rules, creates the appearance of the improper commingling of political and official resources.(26)

The Committee only found that Joe Gaylord's activities preceding the 104th Congress were a violation of House Rule 45. Elizabeth Drew, in her book Showdown, strongly suggests that Gaylord was performing official duties during the 104th Congress. She writes:

A close Gingrich associate said, "Joe is really the chief of staff,"....A close associate said, "Joe Gaylord has line authority for everything in Newt's life." Another said, "Gaylord has complete control over Newt's schedule" -- and then he added "along with Dan Meyer."... Gaylord was Gingrich's chief political strategist, and was also known to chair substantive meetings on matters of interest to Gingrich. A close associate said, "Newt delegates to Joe, and Joe calls other members of Newt's staff and gives instructions. Joe sits in staff meetings where he's present and Newt is not, and the next ranking person in the room is Dan Meyer."...When there was a substantive issue that involved politics -- and few didn't -- Gaylord was often in the room....In 1995, aware that eyes were on his role, Gaylord's physical presence was reduced, but not his influence.(27)

Another passage in Showdown describes a meeting on the House Republican Medicare legislative proposal:

Gingrich had been deeply involved in the details of the Republican proposal. On September 11, a meeting in Gingrich's office with the relevant subcommittee chairmen and Gingrich advisers, including Joe Gaylord, had gone on until 1:45 A.M., where the group went through the proposal line by line.(28)

The Ethics Committee made no mention of such evidence of Gaylord's official activities during the 104th Congress in its letter to the Speaker. Perhaps the Ethics Committee made no effort to uncover it -- even though it had investigative powers that Ms. Drew, as a reporter, did not. How could the Committee come up with so little? Albert Hunt of The Wall Street Journal wrote about the evidence of investigative failure in the Gaylord case:

...Ms. Drew clearly proves that Mr. Gaylord played a significantly larger role in official legislative activities than he or the Speaker acknowledged to the ethics panel.(29)

Ethics Committee rules state that if the Committee, by a majority vote, finds that an ethics complaint "merits further inquiry, it shall adopt a Resolution of Preliminary Inquiry."(30) But in 1995 the Committee began an inquiry regarding Gingrich's book deal with HarperCollins Publishers without having adopted a resolution to that effect. Was this done to save the Speaker from the embarrassment of an Ethics Committee vote in favor of a preliminary inquiry?

It is standard procedure for the Ethics Committee to hire outside counsel to investigate ethics complaints concerning possibly serious violations of federal law or House Rules. Yet, the Ethics Committee has been most unwilling to take such action regarding Speaker Gingrich. Only one part of one complaint against Speaker Gingrich has been sent to special counsel for investigation. (The Ethics Committee once did somewhat broaden the mandate of the special counsel.) Such reticence in employing outside counsel, combined with what appears to be an incomplete investigation by Ethics Committee members and staff in the Donald Jones and Joe Gaylord matters, undercut the credibility of the ethics process in the Gingrich case. Why did Speaker Gingrich receive such special treatment from the Ethics Committee?

On January 21, 1997, the House of Representatives voted to reprimand Speaker Gingrich and levy a $300,000 penalty against him. Until then, the Ethics Committee had not recommended a single punishment against him, other than letters of reproval, even though it had repeatedly found him to have violated House Rules, and engaged in other blameworthy conduct.(31) Why did the Ethics Committee ignore the cumulative impact that establishes a pattern of wrongdoing?

The Ethics Committee must act with an eye toward the incentives it establishes. By failing to punish the Speaker for his pattern of violations of House Rules, it will invite other members of Congress to violate House Rules, because they will understand that they act with impunity, without fear of rebuke from the Ethics Committee.

When Representative David Bonior and others attached over 8,000 pages of evidence to a December 14th, 1995 ethics complaint regarding the Speaker, the Ethics Committee rejected the complaint without explanation, and returned the documents.(32) Such stonewalling is unacceptable in a democracy. The Ethics Committee should eagerly and willingly accept documents related to possible wrongdoing by a member of the House of Representatives. The policy of the Senate Select Committee on Ethics is clear in this respect:

All documents in the possession of the complainant relevant to or in support of his or her allegations may be appended to the complaint.(33)

Representative Jim McDermott, the former Ranking Minority Member of the Ethics Committee, has publicly asserted that the ethics proceedings concerning Speaker Gingrich became a partisan farce:

At every turn the Republican majority of the Committee has delayed, stonewalled, or otherwise obstructed sensible efforts to get at the whole truth. Hearings have been held with little notice and no advance preparation by staff. Complaints lodged against Members of the Minority have been used as barter over sanctions for the five instances in which the Committee found Speaker Gingrich to have violated House Rules. The Special Counsel has been hamstrung and treated as an employee of the Majority. He has not been granted full powers to pursue the truth, independent of any partisan influence.(34)

These claims are serious and the Ethics Reform Task Force should investigate them. It should ask Rep. McDermott to testify in public about his January 14 statement. Along similar lines, Representative George Miller (D-CA) stated that:

the Committee is either not competent or not willing to fully investigate matters that come before it. This poses a serious threat to the integrity of the Congress and sends a dangerous message to lawbreakers that ethics violations will be tolerated.(35)

The Ethics Reform task Force should ask Rep. Miller explain and document his statement in detail.

Representative Bud Shuster

Beginning in February, 1996, the Congressional Accountability Project tried to file an ethics complaint concerning House Transportation and Infrastructure Committee Chairman Bud Shuster. The complaint contained evidence of possible acceptance of illegal gratuities, as well as possible violations of House Rules regarding providing legislative favors for a top transportation lobbyist with whom Rep. Shuster sometimes lodges. These allegations were based on detailed articles from credible news sources.(36) Over seven months, the Congressional Accountability Project contacted twenty House Democrats and an Independent trying to obtain a letter of transmittal for an ethics complaint against Rep. Shuster.(37) Finally, on September 5, 1996, the Congressional Accountability Project obtained three letters of refusal, and filed a complaint with the Ethics Committee.(38)

The procedural barriers that prevent the filing of ethics complaints -- which are not present in the Senate ethics process -- are a grievous flaw in the House ethics process. They act as a barrier to the investigation of House members for possible violations of House Rules and federal law.

After the Congressional Accountability Project filed the complaint against Shuster, the Ethics Committee did rouse itself to action. It determined that the signatures on the letters of refusal were legitimate. That's all. Roll Call reported that:

Republicans [on the Ethics Committee] appear to be searching for any potential loophole that would allow them to reject the complaint [against Shuster.] (39)





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)

According to a report from the Ethics Committee,

unresolved complaints left pending at the end of a Congress expire at the end of that Congress. The Committee in the 105th Congress may carry over any complaint by motion or ask the complainant to refile the complaint.(42)

If the Ethics Committee does not move to carry over the Shuster complaint to the 105th Congress, it will be difficult, or perhaps impossible, for the Congressional Accountability Project to refile it. It took seven months for the Congressional Accountability Project to obtain the three letters of refusal needed to file the complaint. Two of the members who provided the letters of refusal have now retired (Reps. Pat Schroeder and Pat Williams). Replacing those two letters of refusal would likely be extremely difficult. In addition, if the House were to approve any Rule that would make it even slightly more difficult for outside groups to file ethics complaints, it would likely be impossible for the Congressional Accountability Project to refile the complaint against Rep. Shuster. Since the Ethics Committee has been unwilling to initiate its own investigation of Rep. Shuster, this could effectively block any Ethics Committee investigation of him.

In June, 1996, credible news reports suggested that the Ethics Committee was linking ethics matters pending before the Committee. The Journal of Commerce reported that:

...Democrats allege Republicans have engaged in improper horse trading on the ethics committee by attempting to link Rep. Shuster's circumstance with an unrelated situation involving retiring Rep. Pat Schroeder, D-Colo.

'We've been told the committee might be contemplating some sort of barter or exchange," said Dan Buck, top aide to Rep. Schroeder. "It's a corruption of the ethics process and doesn't reflect cred[it]ably on the institution. If the want to investigate Schroeder, they should investigate Schroeder. If they want to investigate Shuster, they should investigate Shuster. Instead, they are going to try to take a hostage so we can have an exchange of prisoners.'(43)

Similarly, Roll Call reported that Ethics Committee Chair Nancy Johnson was trying to link the Shuster case to an allegation involving former Rep. Pat Schroeder, on the flimsy pretext that both had involved oral advice the two had received from ethics attorneys -- on entirely different matters. The purpose, it seems, was to try to get the Shuster complaint dismissed.(44)

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:

The job of the House Ethics Reform Task Force is an important one, because of the myriad failures by the House Committee on Standards of Official Conduct during the 104th Congress. Citizens are inadequately protected against corruption, influence-peddling and abuse of power by members of the House of Representatives.

Thank you for this opportunity to testify before the Ethics Reform Task Force. I respectfully request that my written testimony and its attachments be made part of the hearing record.



Endnotes

1. Correspondence from Gary Ruskin, Director, Congressional Accountability Project to Chairwoman Nancy Johnson, House Committee on Standards of Official Conduct, October 3, 1995. See Attachment #1.

2. Sarah Pekkanen, "Collins' Aides Performed Personal, Campaign Duties." The Hill, August 16, 1995. Attachment #2 also includes Lisa Zagaroli and Carol Stevens, "Rep. Collins Uses Tax Money For Stamps." Detroit News, May 27, 1995. Sarah Pekkanen, "Collins Pocketed Scholarship Funds; Justice Investigates." The Hill, September 13, 1995.

3. The Congressional Accountability Project contacted the following members of Congress: Reps. Gil Gutknecht, Linda Smith, Sam Brownback, Christopher Shays, Dick Zimmer, Walter Jones, Bob Barr, Steve Largent, Mark Sanford, Steven LaTourette, Ed Bryant, Sue Myrick, Dick Chrysler, Scott Klug, Van Hilleary, Fred Upton, Dave Camp, Nick Smith, J.C.Watts, David McIntosh, Dan Burton, Pete Hoekstra, Newt Gingrich, Dick Armey, and Tom DeLay.

4. Attachment #3 includes an excerpt from David Maraniss and Michael Weisskopf, "Speaker and His Directors Make the Cash Flow Right." The Washington Post, November 27, 1995. Alice Love, "DeLay Brothers Lay a Trail of Cement." Roll Call, October 23, 1995. "The Brothers DeLay." Editorial, Roll Call, October 23, 1995. Frank Greve, "Brothers." Austin American-Statesman, August 22, 1996. Nancy Mathis, "Criticism of DeLay, Brother Hardens Over Cement Tariff." Houston Chronicle, October 19, 1995. See also Damon Chappie, "The Brothers DeLay: New Forms Show Whip's Brother Cashing In." Roll Call, September 5, 1996. Jan Reid, "Sins of Emissions." Mother Jones, September/October 1996.

5. Reps. Richard Gephardt, David Bonior, George Miller, Andy Jacobs, Luis Gutierrez, David Obey, John Conyers, Pat Schroeder, Pete Peterson, Harry Johnston, Ed Markey, Charles Schumer, Major Owens, Mike Ward, Ed Towns, Scotty Baesler, Sam Farr, Maxine Waters, Bob Filner, Glenn Poshard, Peter DeFazio, Lloyd Doggett, Sheila Jackson Lee, Lynn Rivers, Cynthia McKinney, Zoe Lofgren, John Lewis, Nydia Velasquez, Anthony Beilenson, Cardiss Collins, Jack Reed, William Jefferson, Patsy Mink, Lane Evans, Frank Mascara, Lynn Woolsey, Robert Scott, Martin Sabo, Bill Luther, Jerrold Nadler, Carolyn Maloney, Karen McCarthy, Frank Pallone, Robert Menendez, Tom Barrett, Jack Reed, Pat Williams, Jim Oberstar, Bart Stupak, and Bernard Sanders.

6. Correspondence from Gary Ruskin, Director, Congressional Accountability Project to Chairwoman Nancy Johnson, House Committee on Standards of Official Conduct, September 5, 1996. Attachment #4 also includes correspondence from Ralph Nader to House Minority Whip David Bonior, July 15, 1996. Correspondence from Gary Ruskin, Congressional Accountability Project, to House Minority Whip David Bonior, July 29, 1996. David Corn, "Drop the Dime on the G.O.P.: Why are the Democrats so Timid about Exposing Republican Corruption?" The Nation, June 17, 1996. "No Filings." Roll Call, August 22, 1996. William E. Clayton, Jr., "Ethics Complaint Lacks Support." The Houston Chronicle, August 16, 1996.

7. "Justice DeLayed." Editorial, Roll Call, September 9, 1996. See Attachment #5.

8. U. S . House of Representatives, House Committee on Standards of Official Conduct, "Summary of Activities, One Hundred Fourth Congress." House Report #104-886, p. 26.

9. Juliet Eilperin, "Leaders Agree to Ethics Truce Until April 11." Roll Call, February 6, 1997.

10. Correspondence from Paul S. Davis to U.S. Representative Nancy L. Johnson and U.S. Representative Jim McDermott. See Attachment #6.

11. Damon Chappie and Juliet Eilperin, "Gingrich Reveals New Evidence About Jones Case." Roll Call, April 4, 1996. See Attachment #7.

12. Memorandum from Paul Davis to U.S. Representative Nancy Johnson Re: Donald G. Jones activity in Speaker's office, March 14, 1996. See Attachment #8. The "attached Jones memo" referred to by Paul Davis is the June 30, 1995 memorandum by Donald Jones titled "Six Months of Newt's '95 revolution."

13. Michael Kuczkowski, "No Questions Asked." Hartford Advocate, October 2, 1996. See Attachment #9.

14. Damon Chappie and Juliet Eilperin, "Jones Offered Gingrich Campaign Giver's View on Internet Regulation." Roll Call, April 22, 1996. Attachment #10 also includes Donald G. Jones personal memo, May 17, 1996. Phil Kuntz, "Memo Outlines Gingrich's Discussion of Internet Issues With Entrepreneur." The Wall Street Journal, April 19, 1996.

15. Robert T. Nelson, "Ethics Panel Is Too Easy on Gingrich, Critics Say." The Seattle Times, April 25, 1996. See Attachment #11.

16. Adam Clymer, "Gingrich Gets a Mild Rebuke in Ethics Case." The New York Times, March 30, 1996. See Attachment #12.

17. See "The Jones Case." Editorial, Roll Call, April 25, 1996. Attachment #13 also includes Michael Kuczkowski, "Nancy's New Headache." Hartford Advocate, May 9, 1996.

18. "Mr. Gingrich and His Volunteer." Editorial, The New York Times, April 24, 1996. See Attachment #14.

19. "Wrist-Slapping." Editorial, Roll Call, April 4, 1996. See Attachment #15.

20. See Attachment #16 which contains correspondence from Ralph Nader and Gary Ruskin to Representative Nancy Johnson, March 31, 1995.

21. House Committee on Standards of Official Conduct Rule 15(c). Attachment #17 includes correspondence from House Committee on Standards of Official Conduct Chairman Nancy L. Johnson and Ranking Democratic Member Jim McDermott to Honorable David Bonior, January 25, 1996.

22. Correspondence from Reps. Bonior, DeLauro, Lewis, Miller, and Schroeder to the Honorable Nancy Johnson, Chairwoman, Committee on Standards of Official Conduct, January 31, 1996. See Attachment #18.

23. Correspondence from House Committee on Standards of Official Conduct Chairwoman Nancy Johnson and Ranking Minority Member Jim McDermott to The Honorable Newt Gingrich, September 28, 1996. See Attachment #19.

24. Rebecca Carr, "Members Agree Hansen's the Man for the House's Least Favorite Job." Congressional Quarterly, January 27, 1997. See Attachment #20.

25. Adam Clymer, "Little Work Done, Ethics Panel Will Miss Deadline on Gingrich." The New York Times, June 29, 1995. See Attachment #21.

26. Correspondence from House Committee on Standards of Official Conduct Chairman Nancy Johnson and Ranking Democratic Member Jim McDermott to Speaker Newt Gingrich, December 6, 1995.

27. Elizabeth Drew, Showdown: The Struggle Between the Gingrich Congress and the Clinton White House. (New York: Simon & Schuster, 1996) pp. 52-53. See Attachment #22.

28. Elizabeth Drew, Showdown, p. 316. See Attachment #23.

29. Albert R. Hunt, "Gingrich and GOP House: What a Difference a Year Makes." The Wall Street Journal, April 18, 1996. See Attachment #24.

30. House Committee on Standards of Official Conduct Rule 15(f).

31. See Attachment #25 which includes a Summary of House Committee on Standards of Official Conduct Statements About House Speaker Newt Gingrich.

32. Correspondence from House Committee on Standards of Official Conduct Chairman Nancy L. Johnson and Ranking Democratic Member Jim McDermott to Honorable David Bonior, January 25, 1996.

33. Rules of Procedure, United States Senate Select Committee on Ethics, Rule 2(b)(6).

34. Statement by U.S. Rep. Jim McDermott, Seattle, Washington. January 14, 1997. See Attachment #26.

35. "Rep. Miller Files New Ethics Complaint Against Speaker Gingrich." Statement, April 22, 1996. See Attachment #27.

36. Attachment #28 includes William L. Roberts, "Lobbyist's '95 Revenue Could Top $1 Million." Journal of Commerce, February 8, 1996. William L. Roberts, "Aide's Ties Raise Ethical Questions." Journal of Commerce, July 31, 1995. Timothy J. Burger, "Transportation Chair Lodges With Ex-Aide Who Makes Six Figures Lobbying His Panel." Roll Call, February 8, 1996. "Investigate Shuster." Editorial, Roll Call, February 12, 1996. Karen Tumulty, "The Ties That Bind." Time, February 26, 1996. Jill Abramson, "Emergence of Single-Member Lobbying Raises Fresh Concerns in Post-Packwood Washington." Wall Street Journal, September 20, 1995. "Dynamic Duo." Editorial, New York Times, March 16, 1996. "Shuster & Ethics." Editorial, Roll Call, February 22, 1996. "Shuster, Inc." Editorial, Roll Call, May 2, 1996. Phil Kuntz, "Pennsylvania's Rep. Shuster Stayed at Home of Ex-Aide, Now a Lobbyist." Wall Street Journal, February 9, 1996. Timothy J. Burger, "Shuster Intervened for Sons' Business Partner." Roll Call, April 29, 1996.

37. The Congressional Accountability Project contacted the following members of Congress: Reps. David Bonior, Richard Gephardt, George Miller, Luis Gutierrez, John Conyers, John Lewis, Pat Schroeder, Lloyd Doggett, Harry Johnston, Maxine Waters, Peter DeFazio, Patsy Mink, Pat Williams, Andy Jacobs, Sheila Jackson Lee, Frank Pallone, James Oberstar, Robert Menendez, Bob Filner, Richard Durbin, and Bernard Sanders.

38. Correspondence from Gary Ruskin, Congressional Accountability Project to Chairwoman Nancy Johnson, House Committee on Standards of Official Conduct, September 5, 1996. Attachment #29 also includes Larry Wheeler, "Watchdog Group Still Pushing for Shuster Investigation." Gannett, August 8, 1996. See also correspondence from Ralph Nader to House Minority Whip David Bonior, July 15, 1996. Correspondence from Gary Ruskin, Congressional Accountability Project, to House Minority Whip David Bonior, July 29, 1996. David Corn, "Drop the Dime on the G.O.P.: Why are the Democrats so Timid about Exposing Republican Corruption?" The Nation, June 17, 1996. "No Filings" Roll Call, August 22, 1996.

39. Damon Chappie and Juliet Eilperin, "As Gingrich Controversy Simmers, Ethics Panel Debates Whether to Take Up Complaints About DeLay, Shuster." Roll Call, September 12, 1996. See Attachment #30.

40. U. S . House of Representatives, House Committee on Standards of Official Conduct, "Summary of Activities, One Hundred Fourth Congress." House Report #104-886, p. 26.

41. Frank Phillips, "Congressman's Ties To Big Dig Land Takings Are Scrutinized," Boston Globe, February 3, 1997. Attachment #31 also includes Frank Phillips, "Ex-Aide, Lobbyist Focus of Probe." Boston Globe, February 5, 1997. Damon Chappie, "Shuster, Senate Aide Caught Up In Probe." Roll Call, February 6, 1997.

42. U. S . House of Representatives, House Committee on Standards of Official Conduct, "Summary of Activities, One Hundred Fourth Congress." House Report #104-886, p. 26.

43. William Roberts, "House GOP Pushes Ethics Clearance for Shuster." Journal of Commerce, June 13, 1996. See Attachment #32.

44. Damon Chappie and Juliet Eilperin, "Ethics Spars Over Plan to Clear Rep. Shuster." Roll Call, June 13, 1996. Attachment #33 also includes Don Michak, "Johnson Once Again Embroiled in Ethics Panel Controversy." Manchester Journal Inquirer, June 15, 1996.

45. James Madison, in The Federalist Papers. Federalist No. 10.

46. Richard J. Phelan, "Do Unto Gingrich." The New York Times, January 3, 1995. See Attachment #34.

47. R. H. Melton, "Ethics Panel Deadlocked on Gingrich Complaints." The Washington Post, May 20, 1995. Attachment #35 also includes Michael Ross, "Ethics Committee Deadlocked Over Gingrich Issues." Los Angeles Times, May 26, 1995.

48. Robert T. Nelson, "Ethics Panel Is Too Easy on Gingrich, Critics Say." The Seattle Times, April 25, 1996.

49. Rules of Procedure, United States Senate Select Committee on Ethics, Rule 3(a).

50. Adam Clymer, "Gingrich Gets a Mild Rebuke in Ethics Case." New York Times, March 30, 1996.

51. Larry Margasak, "Lawmaker Rebuked by Ethics Committee Allowed to Announce It." Associated Press, March 22, 1996. Attachment #36 also includes correspondence from Ralph Nader and Gary Ruskin, Congressional Accountability Project to Chairwoman Nancy Johnson, House Committee on Standards of Official Conduct, March 22, 1996.