Defying the wishes of their top leaders, House Republicans voted behind closed doors Monday night to rein in the independent ethics office created eight years ago in the wake of a series of embarrassing congressional scandals.
The 119-to-74 vote during a GOP conference meeting means that the House rules package expected to be adopted Tuesday, the first day of the 115th Congress, would rename the Office of Congressional Ethics (OCE) as the Office of Congressional Complaint Review and place it under the oversight of the House Ethics Committee.
Under the proposed new rules, the office could not employ a spokesperson, investigate anonymous tips or refer criminal wrongdoing to prosecutors without the express consent of the Ethics Committee, which would gain the power to summarily end any OCE probe.
The OCE was created in 2008 to address concerns that the Ethics Committee had been too timid in pursuing allegations of wrongdoing by House members. Under the current House ethics regime, the OCE is empowered to release a public report of its findings even if the Ethics Committee chooses not to take further action against a member.
The move to place the OCE under the Ethics Committee’s aegis stands to please many lawmakers who have been wary of having their dirty laundry aired by the independent entity, but some Republicans feared that rolling back a high-profile ethical reform would send a negative message as the GOP assumes unified control in Washington. President-elect Donald Trump has repeatedly promised to “drain the swamp” and has proposed a series of his own ethics reforms.
House Speaker Paul D. Ryan (R-Wis.) and Majority Leader Kevin McCarthy (R-Calif.) opposed the amendment to the House rules package, speaking out against it in the Monday evening conference meeting, according to two people in the room.
But the measure’s sponsor, Judiciary Committee Chairman Bob Goodlatte (R-Va.), said in a statement that it “builds upon and strengthens” the current arrangement and that it improves the due process rights for the House members under investigation and witnesses interviewed in the course of OCE probes.
“The OCE has a serious and important role in the House, and this amendment does nothing to impede their work,” Goodlatte said.
Goodlatte’s amendment to the House rules “provides protections against any disclosures to the public or other government entities,” according to a summary provided by his office, and also mandates that the Ethics Committee — not the OCE itself — make any referral of a potential criminal violation to law enforcement.
“Feedback from Members and staff having gone through review by the OCE has been that those under investigation need increased protection of their due process rights, greater access to basic evidentiary standards, and a process that does not discriminate against them for invoking those rights,” the summary said. “The amendment seeks to strengthen each of these needs while maintaining the basic core of OCE’s functions.”
The measure also prohibits limits the OCE’s jurisdiction to the previous three Congresses, aligning its statute of limitations to the Ethics Committee’s.
An OCE spokeswoman declined to comment Monday. Because Monday’s vote was taken in a private party meeting, there is no public tally of how members voted on the proposal.
Ethics watchdog groups warned that the amendment could undermine public confidence in Congress.
“Threatening its independence is a disservice to the American people who need a nonpartisan body to investigate the ethical failures of their representatives,” said Jordan Libowitz, a spokesman for Citizens for Ethics and Responsibility in Washington, a watchdog organization. “The fact that they do not want an Office with ‘Congressional Ethics’ in the name is a pretty good metaphor for how ethics scandals will be dealt with if this rule passes.”
Democrats, then in the House majority, established the OCE in 2008 in the aftermath of the lobbying scandal surrounding Jack Abramoff to conduct ethics investigations free from political influence. But in recent years, some members of Congress have sought to limit the office and its work.
At the start of the last Congress, Rep. Steve Pearce (R-N.M.) pushed for a rule change to stress that people being investigated by the OCE could not be denied their constitutional rights and had a right to counsel. According to media reports, Pearce raised the objection because he felt a staffer in his office had been treated unfairly.
The OCE’s rules permit people under investigation to work through a lawyer.
Last summer, Pearce repeated such complaints during comments on the House floor, when he proposed an amendment to limit the OCE’s funding, arguing that it was justified by government-wide budget restrictions and the need “to give notice to the OCE that we’re watching what you’re doing.”
The pushback hasn’t come only from Republicans. In 2011, Rep. Mel Watt (D-N.C.) — who had been subject to an OCE investigation — drafted an amendment to slash funding from the OCE by 40 percent, calling the office “redundant and duplicative” of the House Ethics Committee. That amendment was rejected.
Democrats pounced Monday on the Republicans’ move. Minority Leader Nancy Pelosi (D-Calif.) said in a statement that the GOP “has acted to weaken ethics and silence would-be whistleblowers” and that the proposed arrangement “would functionally destroy” the OCE.
“Republicans claim they want to drain the swamp, but the night before the new Congress gets sworn in, the House GOP has eliminated the only independent ethics oversight of their actions,” Pelosi said. “Evidently, ethics are the first casualty of the new Republican Congress.”
The House Ethics Committee is composed of sitting members of Congress, five Republicans and five Democrats, while the Office of Congressional Ethics is run by a six-member board with two alternates. One alternate position is vacant.
It does not have subpoena power, but its reports and investigations are often a first vetting in situations where members are alleged to have violated the rules of congressional conduct. Several of the cases reviewed by the OCE have been referred to the House Ethics Committee for further proceedings.
Unlike most congressional committees, the Ethics Committee is evenly divided between the majority and minority parties. A senior GOP aide not authorized to comment publicly on the matter noted Friday that because of that, Republicans could not act unilaterally to protect members of their own party.
But in the decades before the OCE was created, the Ethics Committee was routinely criticized for protecting lawmakers of both parties by sanctioning members in only the most egregious and well-publicized cases.
In the Senate, there is no equivalent of the Office of Congressional Ethics.