Nov 16, 2007 -- The Hill: Watchdogs divided over ethics plan
By: Susan Crabtree

After months of delay, the House ethics task force has wrapped up its work and will recommend an independent ethics office within the House, but the move immediately prompted a split among ethics watchdog organizations.

According to sources and an outline of the proposal, outside individuals and groups will not be allowed to file complaints against members either to the office or the ethics committee, and the panel lacks subpoena powers. Both are provisions that watchdog groups have pushed hard for.

The Office of Congressional Ethics (OCE) will be composed of six board members. Current House members and lobbyists will be ineligible to serve.

House Ethics Task Force Chairman Michael Capuano (D-Mass.) and Lamar Smith (R-Texas), the chairman and ranking member of the task force, have spent months working out whether to create an outside panel and what powers it would have. The plan was circulated among members Thursday.

In recent years, after a series of mainly GOP public corruption cases, many have described the House ethics committee as a paper tiger that fails to hold members accountable. Speaker Nancy Pelosi (D-Calif.) created the task force at the beginning of the year after Democrats won back the majority at least in part because of the GOP ethics scandals.

The office will initiate investigations on its own, while members will continue to submit their complaints to the ethics committee. After an initial review, the ethics office will alert the ethics committee if its board members believe a second-phase review is necessary.

Capuano expects to present the new proposal for House approval in December. But he did not say whether he would push for House leaders to schedule a vote on a House rules change on this version, as would be required to create the ethics office.

"We've done this once before and got hammered," Capuano conceded. "We'd like to get things done in December, but we'll see what we do."

Capuano also said he had not decided whether to hold a vote of the eight members of the bipartisan task force on the proposal.

The task force produced a plan earlier this year that was roundly criticized by watchdog organizations for its lack of enforcement and subpoena powers. The groups also expressed concern over the provision that outside parties may only file complaints if they disclose their donors in the process. Right now, the ethics committee can only act on complaints filed by House members. By contrast, the companion panel in the Senate may act on complaints from individuals and groups.

Capuano says he believes the task force has made progress since then. He also got a boost from Common Cause, an influential watchdog organization that has signed on as supporting the latest effort.

"It's a huge improvement over what we have now," said Sarah Dufendach, vice president for legislative affairs at Common Cause. She said the measure has transparency, independence and timetables. "It's not everything we wanted. But you can't let the perfect be the enemy of the good."

Dufendach said her group could still support the plan even though outside groups cannot file complaints directly. As Common Cause sees it, she said, outsiders could still contact the board informally. After that, the board can send the complaint on to the committee.

"The big thing is the independent trigger," Dufendach said.

On the issue of subpoenas, she said the board could recommend that the ethics committee subpoena a witness.
"Common Cause thinks this is going to make a member more accountable," she said.

Common Cause also likes the reporting provisions that allow outsiders to see whether the ethics committee is acting, she said.

Other influential watchdog organizations, however, immediately slammed the proposal as too weak, lacking enforcement mechanisms and subpoena power.

"From our perspective, this is not the solution to the problem that exists," said Fred Wertheimer, who heads Democracy 21. "This is the creation of an outside office with handcuffs. It simply does not have the subpoena power or access to subpoena power that every other body on Capitol Hill has when they need to conduct investigations."

Meredith McGehee of the Campaign Legal Center said she was "disappointed" that there are too many gaping holes and weaknesses in the proposal to support it.

She added, however, she is still hopeful that it can be strengthened before the House votes to change the rules. That would force Pelosi to be judged on whether the task forces produces a stronger ethics system or a "house of horrors," as McGehee described this proposal to be.

"In the end this all falls at the door of Nancy Pelosi. It's not a done deal yet. I will say that I had different expectations for this Speaker."

Meanwhile, the spokeswoman for Lamar Smith poured cold water on the proposal, saying that it was premature and anything but final.

"Nothing has been decided," said Christine McCarty, Smith's spokeswoman. "We're going to have some meetings in December, so basically we're going to continue to work on it and continue to have discussions with Capuano and other members."

McCarty said Smith did not want to comment about the proposal, adding that action may hold off until January.
For his part, Capuano said he is most proud of the proposal's transparency provision, but he declined to predict whether he felt the creation of this type of outside panel would lead to more ethics complaints.

"I did believe the lack of transparency in the current system is a fair criticism," he said.

All referrals to the ethics committee will include two documents. One recommends either dismissal or a further inquiry, or states that the Board vote was a tie. The other details the office's findings of fact. Neither document will contain conclusions regarding the validity of the allegations or the guilt or innocence of the person under investigation. Those matters will remain the sole responsibility of the ethics committee.

The ethics committee will then have 45 days or five legislative calendar days — whichever is longer — to review the referral with an option for one extension of the same length.

At the end of that time period, the ethics committee must publicly disclose "commentary" on its status, along with the report and findings of the board. The committee also must provide public notice when the committee votes to take some action against a member. At that point, it defers its investigation at the request of the appropriate law enforcement or regulatory agency, such as the Justice Department, or when it establishes an investigative subcommittee.

If committee investigation continues for a year without reaching a conclusion, the ethics office's report will be published. All board findings will be published at the close of the Congress in which they were written.