Thank you for allowing me to testify again before this Task Force.
During the 104th Congress, the House Committee on Standards of Official Conduct ("Ethics Committee") maintained a policy of liberal permissiveness toward House Members. It too often acted as a shield for Members to hide behind, instead of diligently enforcing House Rules. We testified(1) in March that the Ethics Committee's worst problems were:
We suggested four major reforms to solve these problems:
The Task Force has rejected these reforms almost entirely.
The Task Force, which was supposed to improve the ethics process, proposes instead to make it even worse. The Task Force report would undermine efforts to identify, investigate, and punish corruption, influence-peddling and abuse of power in the House of Representatives. The Task Force should overhaul its report to strengthen -- not weaken -- the Ethics Committee's capacity to find out whether a House Member has violated the public trust. The Task Force has developed a few positive ideas to improve the process. But these small constructive steps are far overshadowed by retrograde proposals to make it more difficult for citizens to file ethics complaints.
Two of the Task Force's procedural problems merit brief mention. First, it is appropriate for the Task Force to hold this public hearing, but the Task Force should not have conducted all but two meetings in secret. Closed-room deliberations do not make the American people trust your work. Second, the Task Force should not have hired Richard Leon as Special Counsel. Leon is also counsel to Ann Eppard,(2) who is a lobbyist and close ally of House Transportation Committee Chairman Bud Shuster (R-PA). She is a central figure in our ethics complaint against Chairman Shuster. Your choice of Leon has harmed the credibility of your work. The Task Force should have hired an impartial Special Counsel.
Section 1: Use of Non-Committee Members
We believe the most important reform for the House ethics process would be to appoint outside counsels to investigate most, or all, ethics complaints. The Congressional Accountability Project recommends that when a new ethics case is brought to the attention of the Ethics Committee, either the Chair or the Ranking 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 group 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. Common Cause has proposed creating an independent "Office of Ethics Counsel" which would be responsible for investigations. The routine presence of trustworthy, competent outsiders is the best way to restore trust to the discredited House ethics process. But the Task Force has rejected this reform, even though the most important lesson of the ethics cases against Speakers Newt Gingrich (R-GA) and Jim Wright (D-TX) was that the use of outside counsel advances the ethics process.
The Task Force states that "Task Force Members were concerned with the explicit Constitutional responsibility of the House" regarding the hiring of outside counsels. That is as it should be. The Constitutional argument raised by the Task Force is not trivial, but is easily solved. Members can be judged by their peers, as outlined by Article 1, Section 5 of the Constitution, and still retain outside counsel. Outside counsels, if employed by the House of Representatives, are in keeping with the House's Constitutional responsibility to discipline its own Members.
Nothing in the Task Force's "pool" proposal will build public trust, because Members, not outside investigators, will be conducting the investigations, unless the full Committee or a subcommittee chooses to retain outside counsel. The "pool" proposal does not solve the credible appearance that the House ethics process is merely peer review by a "good ol' boy" network of lawmakers. Only the routine presence of trustworthy, outside investigators can solve this problem.
Your proposal places heavy burdens on Members to do investigative work. Investigative work is time-consuming and painstaking. It is not the best use of a Member's time. Members have far better things to do than to conduct investigations of other Members. Send complaints to trustworthy outsiders for investigation, and use your time to serve your constituents and your country.
Section 3: Committee Agendas
It makes good sense that both the Chair and Ranking Member can place items on the Committee agenda. But the Task Force fails to solve the serious problem of deadlock on agenda items. This was a major problem during the 104th Congress.(3) At a minimum, in case of deadlock, but particularly partisan deadlock, the Ethics Committee should retain outside counsel and appoint an investigative subcommittee. This provision would prevent the time-wasting arguments over the hiring of outside counsel that occurred during the 104th Congress.
Section 4: Committee Staff
Your proposal to require that Committee staff be non-partisan, and appointed by a majority vote of members of the Ethics Committee, is an excellent idea. It will make the ethics process more trustworthy. We support it wholeheartedly. We suggest that Section 4 of the report stress that professional staff members should have significant previous experience in conducting investigations relating to white-collar crime.
Section 5: Meetings and Hearings
We believe that the predisposition to closed full Ethics Committee meetings will erode public trust in the ethics process. If it is necessary to close meetings to maintain confidentiality, then the Committee can and should do so. But full Committee meetings should be open to the public unless they must be closed to protect confidentiality.
Section 6: Confidentiality Oaths
Confidentiality is important in the ethics process. House Members and Committee staff may, however, have higher responsibilities both to the Congress and to the American people than mere confidentiality. A strong case can be made for a limited breach of confidentiality, for example, in a case where a Member is reasonably certain that maintaining confidentiality would likely cause a miscarriage of justice. The Task Force should design a process to deal with this predictable problem.
Section 7: Public Disclosure
We support the proposed rule allowing the chair or ranking member to make public statements, while allowing the full Committee by majority vote to limit or prohibit these statements.
This section should be strengthened to require public disclosure of certain elementary facts about Ethics Committee process and work product. We recommend that the Task Force add to Section 7 that "The status of any complaint shall be disclosed to the public, and all reports, statements of alleged violations, and letters of reproval issued by the Ethics Committee shall be disclosed to the public, and placed on the Internet."
Section 8: Confidentiality of Committee Votes
Keeping Committee votes secret shields Ethics Committee members from accountability. It also hides partisan deadlock in the Committee from public disclosure.
Ethics Committee votes should be made public, but only in a way that ensures the confidentiality due a respondent. Committee votes should be made public by identifying the type of motion, and the vote. So for example, a full Committee roll call vote should be disclosed as "motion to appoint outside counsel in case X" followed by a list of the yeas and nays. This procedure fully protects confidentiality, yet adds needed accountability and transparency to the ethics process.
Sections 9 and 10: Filings by Non-Members of Information Offered as a Complaint, and Requirements to Constitute a Complaint
Current Ethics Committee rules make it difficult for citizens to file ethics complaints against House Members, because citizens may file an ethics complaint only with a letter of transmittal from a Member or three letters of refusal from Members. It took us seven months to obtain the three letters of refusal necessary to file complaints against House Transportation Committee Chairman Bud Shuster, and House Majority Whip Tom DeLay (R-TX). We were never able to file a complaint against ex-Rep. Barbara-Rose Collins (D-MI), because Members declined to provide us with a letter of transmittal or three letters of refusal.
We testified in March that the House should adopt the Senate Rule that allows citizens to file directly with the Senate Select Committee on Ethics without restriction. This is the best policy for assuring accountability and public confidence. It has served the Senate well. There is no justification for placing any restrictions on the filing of complaints by citizens or Members. Any restrictions serve as a shield to protect Members from scrutiny.
The Task Force chose to reject the Senate Rule in favor of insulating Members from ethics investigations. The Task Force proposes restricting citizens' ability to file ethics complaints by specifically excluding news accounts as grounds for a citizen complaint -- even though many recent ethics cases were first brought to light by news accounts. Those cases include: former Speaker Jim Wright (D-TX), former Senator Bob Packwood (R-OR), House Speaker Newt Gingrich (R-GA), former Rep. Barbara-Rose Collins (D-MI), House Majority Whip Tom DeLay (R-TX), and Chairman Shuster. Our complaint against Chairman Shuster is based entirely on news accounts. Our complaint against House Majority Whip DeLay is based almost entirely on news accounts. It contains one single document to bolster one portion of the complaint. The complaint we wish to file against Rep. Jerry Costello (D-IL) is composed mostly of news accounts, but it does contain a single document. The exclusion of news accounts from citizen complaints would be a significant new barrier to accountability.
Imagine if the New York Times, Wall Street Journal, Los Angeles Times, and Washington Post were all to publish similar accounts of wrongdoing by a Member. But if there were no documents available, nor witnesses willing to describe the wrongdoing, then citizens would be excluded from filing a complaint. Such an outcome would be unacceptable.
To further shield Members from scrutiny, the Task Force suggests eliminating an important provision allowing citizens to file ethics complaints with letters of refusal from three Members. Since Members are usually afraid to provide a letter of transmittal against a powerful colleague, and the Ethics Committee is disinclined to initiate its own investigations, the letters-of-refusal provision is particularly important for holding powerful Members to account. We used this provision to file complaints against House Majority Whip Tom DeLay and House Transportation Committee Chairman Bud Shuster.
It took us seven months to obtain letters of refusal for the complaints against Chairman Shuster, and Majority Whip DeLay. No Member would give us a letter of transmittal. Without the letters-of-refusal provision, we could not have filed complaints against either Chairman Shuster or House Majority Whip DeLay. Under the Task Force proposed rule, we probably could not file those complaints again this year, if we had to, because we would probably need a letter of transmittal, and it is unlikely that any House member would provide a letter of transmittal against Chairman Shuster. As Chairman of the Transportation Committee, Shuster decides where roads are built -- and roads are votes. So the Task Force has constructed a process that will shield powerful House members from Ethics Committee scrutiny. We believe that powerful House members, just like other Members, should be held to account for their actions.
The Task Force claims that it is "opening up" the process to outsiders. That is an Orwellian claim in vintage doublespeak. It is already hard for citizens to file complaints in the House. The Task Force report would make this even more difficult.
The House should simply adopt the Senate Select Committee on Ethics rule which allows citizens to file directly, without need for 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.(4)
The Task Force does not set forth a policy for how to proceed in case of deadlock between the Chair and Ranking Member on the question of whether "information offered as a complaint...meets the requirements of the committee's rules for what constitutes a complaint." We suggest that, in case of a deadlock, such information be considered a complaint if either the Chair or the Ranking Member believes it meets the requirements under the Committee's rules.
Section 11: Duties of Chairman and Ranking Minority Member Regarding Properly Filed Complaints
The Ethics Committee in the 104th Congress had a well-documented history of slipshod investigations.(5) This slipshod work damaged the credibility of the ethics process, because the investigation is the foundation upon which the Ethics Committee's determination of guilt or innocence is built. Thorough investigations lead to sound conclusions. Slipshod investigations lead to faulty conclusions. The House ethics process is only as good as its investigators. And the initial phase of the investigation is the most important part of the ethics process.
The only credible solution to the problem of faulty, incomplete investigations is to hire outside counsels. This is particularly true for the earliest phases of an investigation, which the Task Force calls informal fact-gathering. Also, it is a poor use of time for the Chair and Ranking Members to conduct initial fact-gathering. These time-consuming tasks should be undertaken by competent, trustworthy outside counsels.
The idea of encouraging the ethics process to move quickly to investigative subcommittee has some merit. But Task Force process is so easily overridden that it is of doubtful value. Either the Chair or the Ranking Member can halt this process by placing the matter on the Committee agenda, which appears designed to be a graveyard for ethics complaints. If the Committee were to deadlock over how to handle the complaint, then the complaint would end up in the same procedural limbo which bedeviled the Gingrich ethics process.
Consequently, we propose that Section 11 be amended that "if a complaint remains on the Committee's agenda for more than thirty days, or ten legislative days, whichever is less, then the Committee will hire outside counsel to investigate the substance of the complaint."
Section 12: Duties of Chairman and Ranking Minority Member Regarding Information Not Constituting a Complaint
Establishing a process to allow for the submission of material on an informal basis is a worthy idea, because it will increase the flow of documents to the Committee, and build trust in the ethics process.
Section 14: Standard of Proof For Adoption of Statement of Alleged Violation
The Task Force report suggests raising the standard of proof for issuing a Statement of Alleged Violation. The current standard is "reason to believe that a violation has occurred." The proposed standard would require "substantial reason to believe," which would be a higher and unjustifiable hurdle in the adjudication of House ethics cases.
Section 18: Referrals to Federal or State Authorities
The Task Force's proposal regarding referrals to the Justice Department or other federal or state authorities is an improvement over current House procedure. But the Task Force report does not make a convincing case for why referrals should be made by a supermajority vote of the Ethics Committee, instead of a majority vote. We suggest that referrals be made to the Justice Department or other federal or state authorities by a majority vote of the Ethics Committee.
Section 19: Frivolous Filings
Frivolous complaints were filed against House Members during the 104th Congress. Those complaints were a nuisance to the respondents. But the Task Force's proposed cure is worse than the disease. Any attempt to punish members for filing complaints will cause a "chilling effect" on the filing of complaints. The impact of this "chilling effect," which could dramatically increase the already powerful disincentives to filing complaints, would far outweigh any minor benefits of reducing the number of frivolous complaints filed.
The notion of a frivolous complaint is a perilous one. Complaints may be filed with the Committee based on limited information, and a request by the complainant to determine if an allegation is true. We should not discourage Members or citizens from filing complaints in good faith based on limited, though plausible, information.
In addition, without an outside counsel investigation of a complaint, the Ethics Committee will be unable to determine whether a complaint was frivolous, because it will lack a trustworthy investigation and review of the evidence.
The threat of punishment for frivolous filings would make it even more arduous for citizens to obtain a letter of transmittal needed to file an ethics complaint against a House Member. Because investigations would not usually be conducted by outside counsels, complaints judged "frivolous" by the Ethics Committee may contain allegations of violations of federal law or House Rules that are, in fact, true.
For these reasons, Section 19 could harm the ethics process significantly,
and the Task Force should strike it from the report.
How we construct the House ethics process can either build or erode trust that the American people place in their House of Representatives. Will you fashion a process that makes an honest effort to uncover wrongdoing by House Members, or not? Your current proposal does not.
Thank you for this opportunity to testify again before the House Ethics
Reform Task Force. I respectfully request that my written testimony and
its attachments be made part of the hearing record.
2. Damon Chappie, "Ethics Task Force Hires Lawyer Tied to Shuster Case." Roll Call, March 6, 1997. Attachment #2 also includes "Counsel Conflict." Roll Call, March 10, 1997.
3. See, for example, R. H. Melton, "Ethics Panel Deadlocked on Gingrich Complaints." The Washington Post, May 20, 1995. Michael Ross, "Ethics Committee Deadlocked Over Gingrich Issues." Los Angeles Times, May 26, 1995.
4. Rules of Procedure, United States Senate Select Committee on Ethics, Rule 3(a).
5. Testimony of Gary Ruskin, Director of the Congressional Accountability Project, before the House Ethics Reform Task Force, March 4, 1997, pp. 5-11, 13.