Gutting Congress’ Ethics Office Was a Disaster – and an Opportunity


The new House Republican majority, finally seated after days of embarrassing negotiations that resulted in Representative Kevin McCarthy being sworn in as Speaker, made their priorities clear on Jan. 9. With their first official vote, they approved a House rules package that effectively gutted the Office of Congressional Ethics (OCE), the independent body that helps ensure that members of the House don’t abuse their positions. It was a striking decision that sent a clear message: the new far-right majority will demand that the other branches of government live up to ethical standards and practices that they themselves have no intention of following.

McCarthy’s attack on OCE consisted of two components: first, the resolution forced three of the four Democrats who currently sit on the OCE Board to vacate their positions immediately. This move, which was facially based on a decision to implement term limits, undermined the bipartisan nature of OCE’s leadership and left the Board in an extremely difficult and partisan position to hire staff. Second, the new rules require OCE to hire all of its staff within 30 days – and it would likely only be able to do that after it has hired sufficient Board members. This absurd requirement fails to recognize that OCE relies on employees with a detailed and relatively rare legal skillset, making hiring a complex and time-intensive process. On top of the impossibly rushed hiring process, the provision appears written to prevent OCE from hiring any new staff after the 30-day window closes – meaning that the agency wouldn’t be able to replace staff who retire or change jobs for the entirety of the 118th Congress.

This is not the first time Republicans have attempted to destroy OCE. In 2017, Republicans voted behind closed doors to strip OCE of its independence and place it under the control of the House Ethics Committee, a move they only abandoned when former President Donald Trump denounced it on Twitter. House Republicans’ bizarre obsession with OCE ignores the fact that OCE is not a powerful institution. It is, at base, a screen to save Congressional resources. OCE prevents members and their staff from using their limited time and resources to sift through allegations of members’ potential ethics violations, determine if any are credible, and conduct preliminary investigations. OCE is supposed to save Congress time.

Despite the plethora of serious allegations that the Ethics Committee considers, the Committee itself is incredibly weak and generally unwilling to punish members. This failure is not OCE’s fault. OCE does not levy punishments, nor does it recommend them. One of its first chairs, David Skaggs, famously explained that OCE’s function is to “supplement but not supplant” the Ethics Committee. OCE’s subservient relationship to the dysfunctional Ethics Committee means that OCE’s power goes only as far as the members of the Ethics Committee will allow it. Which, in most cases, is not far at all.

This begs the question: Why was gutting OCE the new majority’s first vote in the 118th Congress? The answer is simple. They wanted to dismantle one of the key ways that members of Congress can be held accountable when they abuse their positions of trust – and they succeeded. It could not have come at a worse time.

Congress is mired in a crisis of public confidence that threatens the entire institution, and it will only deepen now that the Republican majority has gutted OCE. But there is one small silver lining: this attack on ethical government is so obviously immoral, so clearly about power, that it created a public climate for truly transformational change. Tinkering around the edges will not save Congress from the increasing public perception that the entire system is built to serve the wealthy and the well-connected at the expense of the poor and disenfranchised. Policymakers who care about rebuilding our democracy must seize this moment to develop strong and innovative policies that they can implement when the political winds turn.

This is a moment for bold, transformational ideas.

There are a number of potential avenues for reform. First, Congress could simply make OCE a standing committee by law, as former Representative Tom O’Halleran proposed last congress. This plan would fix OCE’s biggest flaw: that it must be reauthorized each congress. And, by ensuring OCE’s continued existence, such reform would guarantee that its gatekeeping function remains in place in perpetuity and is not dependent on the political whims of a new Congress.

But this proposal simply isn’t enough. Returning OCE to the pre-McCarthy status quo, reviving the agency without giving it any new powers or correcting any of the system’s other flaws, won’t rebuild public trust in Congress.

Senator Elizabeth Warren and Representative Pramila Jayapal’s massive democracy reform legislation, the Anti-Corruption and Public Integrity Act, is the type of action that would meet this moment. Importantly, it includes a section that would completely overhaul OCE. First, it would expand the office’s jurisdiction to cover the Senate, ensuring that both chambers are regulated by the independent agency. It would also give OCE subpoena power, allowing it to compel testimony and obtain physical evidence as part of its review process. While these enhanced investigatory powers would be a game-changer for the agency, the bill’s boldest and most important element is expanding OCE’s power to recommend disciplinary action to the Ethics Committees and to relevant law enforcement agencies. Whereas the current OCE is tasked exclusively with developing a factual record to give to the Ethics Committee, a revitalized and reimagined OCE would be empowered to tell the Committee precisely which laws or regulations were broken, and to recommend steps for the Committee to take. That would force the Committee to either take the action that OCE recommends or explain to the public why they are choosing to ignore the independent experts’ advice. Additionally, the new OCE would be able to circumvent dysfunctional Ethics Committee politics by making referrals to law enforcement without checking with the Committees. This key improvement would ensure that truly egregious violations are treated with the seriousness they deserve – and not buried because some or all of the Committee’s members are engaged in destructive partisan politics.

Policymakers should also consider adopting elements of the executive branch ethics program for Congress. For instance, the Office of Government Ethics (OGE), the main agency tasked with ensuring that the 2.7 million civilian Americans who work for the executive branch in some capacity do not abuse their position, serves a preventative function. In addition to providing confidential advice to executive branch personnel on how to comply with their ethical requirements – an invaluable service which the Ethics Committees currently provide in Congress – OGE also provides formal advisory opinions upon which people with complex ethical questions can rely. These opinions can also serve as precedent for future employees who find themselves in similar situations, making it easier for everyone to comply with ethics regulations even in the most complex scenarios.

Expanding OCE’s mandate to include issuing formal public advisory opinions – following consultation with the Ethics Committees – could help Members and Congressional staff understand the scope of their responsibilities under the ethics rules. This power could also prove particularly useful in the future, especially if Congress decides to finally update its woefully outdated ethics manual, improve its gift regulations, or make even more substantial changes like prohibiting members, their spouses, and dependent children from owning any individual stocks. Advisory opinions or similar programs are common methods of helping people or corporations comply with their legal and regulatory obligations in the executive and in the judiciary; they could be extremely useful for members of Congress and other employees of the legislative branch.

Gutting OCE is a terrible blow to our government. The decision to undermine the only independent body regulating ethics in the House of Representatives further undermines public faith in an institution that is already in crisis. The impact of this decision will reverberate through the government, both because people like serial fabulist Representative George Santos may evade institutional investigation, and because of the message that it sends to the American people. It is a decision that will exacerbate our crisis of democracy. It is a decision based on power alone.

That is precisely why this is the moment for pro-democracy forces to fight back with bold, transformative legislation. The new majority feels that the rules should not apply to them. That public service is about taking and maintaining power. That the public is so jaded that they don’t care about government ethics. They’re wrong. Gutting their own ethics regulator with their first vote in Congress was so obviously unethical, so clearly about maintaining power and avoiding accountability, that the public is now engaged and demanding real reform. Policymakers would do well to listen.

IMAGE: U.S. Speaker of the House Kevin McCarthy (R-CA) delivers remarks after being elected as Speaker in the House Chamber at the U.S. Capitol Building on January 07, 2023 in Washington, DC. (Photo by Anna Moneymaker/Getty Images)





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