Ethics Enforcement in the 114th Congress
The notion that the House and Senate Ethics Committees are inactive bodies, often implied in media coverage, is far from the truth.
During the previous Congress, the House Ethics Committee issued more than 900 formal advisory opinions and addressed more than 40,000 informal requests for guidance. In the first half of the 113th Congress alone, the House Ethics Committee initiated 23 new investigations and carried over 35 matters from the prior Congress. In 2013, the House Ethics Committee completed 27 investigations and issued four Committee reports (which addressed the activities of 11 Members and 3 employees). Although the House Ethics Committee has not yet released a full report detailing its activities in 2014, it appears that the Committee was busier in the second half of the last Congress, with six reports issued, a 50% increase over 2013.
Although the Senate Select Committee on Ethics has different rules regarding disclosure, in 2013 alone, the Committee wrote about 755 advisory letters and responses, handled approximately 10,000 inquiries, and issued 3,246 letters regarding financial disclosure filings. In 2013, the Committee also received 26 alleged violations (plus two from the prior Congress), which resulted in two preliminary inquiries and no violations.
As the 114th Congress begins, Members and staff will receive ethics training, and many will also seek guidance from the committees regarding specific questions. Some will be the subject of allegations of wrongdoing that the House or Senate Ethics Committee will investigate. Most of those allegations will likely turn out to be meritless, but that fact should serve as a caution not a comfort. And being the subject of an ethics investigation is unpleasant, to put it mildly.
Given that many Members and staff will interact with the House and Senate Ethics Committees, what changes can we expect in the new Congress? With the Senate now under Republican control, Senators Barbara Boxer and Johnny Isakson have switched roles, with Senator Isakson taking the reins as Chairman of the Senate Select Committee on Ethics, with Senator Boxer as Vice Chairman. At the staff level, Deborah Mayer was selected in mid-December to be the new Staff Director and Chief Counsel. Until recently, Ms. Mayer was the House Ethics Committee’s Director of Investigations. She previously investigated and prosecuted public corruption cases as a trial attorney in the Department of Justice, and has also served as an Assistant U.S. Attorney for the Eastern District of New York and in the Navy JAG Corps.
Control of the House has not changed, but control of the House Ethics Committee has, with Representative Charlie Dent replacing Representative Mike Conaway as the chairman. Representative Linda Sánchez will continue as the Ranking Member. At the staff level, the House Ethics Committee is led by Tom Rust, who has been the Chief Counsel and Staff Director since March 2014. Unlike the Senate Ethics Committee, the House Ethics Committee takes referrals from the Office of Congressional Ethics (OCE), an independent entity established by the House, which continues to be led at the staff level by Omar Ashmawy, a former officer in the Air Force JAG Corps who has been the OCE’s Staff Director and Chief Counsel since 2011.
The House also clarified that neither the House Ethics Committee nor the OCE may take any action to deny persons of their constitutional rights and, relatedly, that the OCE must inform those being investigated that they have the right to be represented by counsel and that retaining counsel will not be held against them. Why adopt such language? Isn’t it obvious that Members and staff have constitutional rights? One would think so, but congressional investigations have a different dynamic than, for example, a Department of Justice investigation, and congressional bodies have been known to interpret their powers expansively. At its core, what this language probably calls for is for the Committee and the OCE to review their rules to ensure that all the basic constitutional rights are afforded to those being investigated. It’s unlikely that any changes to the rules to bolster constitutional protections would prevent the Committee and the OCE from carrying out their duties. If the Committee or the OCE concludes, however, that no changes whatsoever are necessary, we may see additional legislation in the future.
As the 114th Congress continues, stay tuned for updates from Covington regarding House and Senate ethics.