By: Jonathan Allen and John Bresnahan

The Office of Congressional Ethics, a powerful symbol of Democrats’ promise to “drain the swamp” in Washington, is in danger of having its power stripped after the midterm elections.

 
Congressional Black Caucus members

Members of the Congressional Black Caucus have led the charge, airing complaints about the aggressive, independent panel in a private session with House Speaker Nancy Pelosi last month, and they’ve drafted a resolution that, if approved, would severely curtail the panel’s power.

But there’s hot competition between the CBC and the official House ethics committee over who has less regard for the Office of Congressional Ethics, also known as the OCE. And the rest of the House doesn’t appear to be far behind in its disdain. Privately, Democratic and Republican lawmakers, and even some congressional leaders, acknowledge that there’s a strong sentiment to change rules that empower the office to publicize investigations and wreak havoc on lawmakers’ political lives.

“We might have to take a fresh look, at some point, at the authority of the OCE,” said North Carolina Democratic Rep. G.K. Butterfield, who is a member of both the CBC and the ethics committee.

Of course, nobody wants to be portrayed as loosening ethics in an election year, and Butterfield was quick to point out that change could come as members “promulgate rules for the 112th Congress” in January 2011.

That won’t stop lawmakers from venting.

The OCE is “out of control,” one House Republican told POLITICO. A Democrat close to Pelosi said the OCE was “way out of bounds” when it sent information to the Justice Department on an investigation into lawmakers’ ties to the defunct PMA lobbying group.

“They’re not supposed to be an independent prosecutor,” said one Republican lawmaker. “I think there’s a lot of regrets with having those people [OCE] there.”

An OCE spokesman declined to speak on the record for this story.

“As with any new organization, it has growing pains [and must] find out how best to do its job,” Hoyer said. “So I’m not surprised there’s concerns being raised. At the end of the Congress, I think we’ll probably assess how well we’ve done, and I think that’s appropriate.”

The most immediate challenge to the OCE’s power is the CBC resolution, written by Rep. Marcia Fudge (D-Ohio) and signed by 19 other members of the CBC.

The threat to the OCE’s independent authority was underscored Wednesday when a group of government watchdog groups released a letter to Pelosi, calling on her to keep the office intact.

“To date, the OCE has made important progress in restoring the shattered credibility of the House ethics enforcement process,” wrote six groups, including the League of Women Voters, The Campaign Legal Center and Public Citizen.

Yet even Majority Leader Steny Hoyer (D-Md.) acknowledges that the House may have to take a second look at the powers of this outside ethics office, which has the authority to publicize its inquiries, unlike the formal House ethics panel, which is much more secretive.


The resolution would curtail the OCE’s power to comment publicly on cases that it dismisses; preclude the release of OCE findings if the ethics committee dismisses a complaint; prevent the ethics committee from receiving reports from the OCE in the 60-day window before a primary or general election involving an accused member and require public complaints to come from witnesses with firsthand knowledge of alleged wrongdoing.

Under current rules, the OCE can initiate investigations into lawmakers and aides based on news reports or complaints — even anonymous ones — from the public. It can recommend that the House ethics committee, a bipartisan panel composed of members, undertake its own investigation into a matter. If the OCE makes such a recommendation and the ethics committee dismisses the complaint, the OCE can release its full report to the public.

Fudge’s resolution appears to be more of a place holder for future action on the office than anything else — and a means for lawmakers to register their dissatisfaction.

“We need to review it; we need to begin a discussion,” Fudge told POLITICO.

In their letter, the watchdog groups told Pelosi the resolution “would undo what has been accomplished and return the House to an era when potential ethics violations disappeared into the files of the House ethics committee, without explanation or public accountability for the committee’s inaction,” and “would usher in a period of more secrecy, less transparency, less accountability and less trust in the House’s ability to police its own ethics rules and standards.”

Senior House Democratic leadership aides said there was “no chance” that the Democratic hierarchy, including Pelosi, would support any rollback of the OCE rules prior to Election Day.

Several lawmakers POLITICO interviewed for this story wanted to keep their names away from any criticism of the OCE, for fear of giving political opponents the ability to cast them as soft on ethics.

But several said a turning point for the office was its handling of the PMA investigation.

A number of Democrats were privately infuriated that the OCE board had authorized handing over PMA to the Justice Department — a significant upgrade in the seriousness of the investigation.

The now-defunct lobbying group — which specialized in obtaining spending earmarks for its clients — is at the center of a still ongoing criminal probe by DoJ. Several senior members of the Appropriations Committee, including the late Rep. John Murtha (D-Pa.) and Rep. Pete Visclosky (D-Ind.), have been implicated.

Under the OCE’s rules, it may “refer information to state and federal authorities in the event that information indicates a crime has occurred or is about to occur.”

But members from both parties insist there was no indication criminal action had occurred in interactions with PMA, and the Justice Department has not charged anyone involved in the case, on or off Capitol Hill, at this point. OCE critics say this shows the panel overreached on the PMA inquiry.

“I don’t think they have the authority to do that,” said a top Democrat close to the House leadership, speaking on condition of anonymity. “That was way out of bounds, and a lot of members are unhappy about it.”

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