HEC And The OCE (LBJ took the IRT...)

Recently, I spotted this at talkingpointsmemo:

Rep. Michele Bachmann (R-MN) could face a House Ethics Committee investigation into alleged campaign finance violations during her bid for the Republican presidential nomination last year, the Daily Beast reported Monday. The allegations are currently being investigated by the non-partisan Office of Congressional Ethics, which has about three months to decide whether to recommend cases for further investigation to the Ethics Committee.

And it got me to thinking.

Not about Representative Bachmann - no, I want to let the process finish before commenting on it.  I got to thinking about the process itself.  How does an ethics allegation work its way through the House of Representatives these days?  What's the process?

Representative Mike Doyle, who we've interviewed  before when he was on the House Ethics Committee in 2007, was kind enough to fill us in on some of the details of the process.

First, what's this Office of Congressional Ethics?  What is its relationship to the House Ethics Committee?

The OCE was created on March 11, 2008 by way of H. Res 895. Before that, Doyle said, only members could trigger any sort of investigation by the House Ethics Committee.  And for this, some watchdog groups in DC took issue with the process as it was.  So the OCE was created to make an initial investigation into any ethics violation allegations and, if there's enough evidence to warrant one, then recommend to the House Ethics Committee that it investigate.

The OCE is designed to be non-partisan.  Here's how it's described in HR 895:

The Office shall be governed by a board consisting of six individuals of whom three shall be nominated by the Speaker subject to the concurrence of the minority leader and three shall be nominated by the minority leader subject to the concurrence of the Speaker.

And:

The Speaker and the minority leader each shall appoint individuals of exceptional public standing who are specifically qualified to serve on the board by virtue of their education, training, or experience in one or more of the following fields: legislative, judicial, regulatory, professional ethics, business, legal, and academic.

And:

Selection and appointment of members of the board shall be without regard to political affiliation and solely on the basis of fitness to perform their duties.

And finally:

No individual shall be eligible for appointment to, or service on, the board who:

(I) is a lobbyist registered under the Lobbying Disclosure Act of 1995;
(II) has been so registered at any time during the year before the date of appointment;
(III) engages in, or is otherwise employed in, lobbying of the Congress;
(IV) is an agent of a foreign principal registered under the Foreign Agents Registration Act;
(V) is a Member; or
(VI) is an officer or employee of the Federal Government.

The point of this last part is to show that no member of the OCE board is employed by the government or are members of Congress or is a lobbyist, etc.

So while an allegation is submitted to the OCE, Doyle said, they look into it and still not recommend any HEC action. (This is why I am not commenting on whatever's facing Michelle Bachman.  It could very easily turn out that the OCE makes NO recommendation to the HEC.)  Fair's fair.  Even for her.

If the OCE does recommend that the HEC open an investigation, the HEC has a limited amount of time to investigate.  And if the HEC decides not to investigate, they'd have to issue a report explaining why.

And the OCE could release its report on why it recommended an investigation in the first place.

On the one hand it seems a bit busy to me, but on the other it looks like a way to make sure important allegations of ethics violations aren't conveniently forgotten or ignored.

Congressman Doyle Explains

This bubbled up over at Talkingpointsmemo yesterday and they must've found it important because it was tagged as the day's "must read." The posting starts with this:

It would be wrong to call the House ethics committee incompetent. Because, really, it ably strives to make itself as irrelevant and impotent as possible.

And links to an article (sub. req.) at The Hill that begins like this:

The House ethics committee has declared that an earmark requested by Rep. Ken Calvert (R-Calif.) to build a commuter transit center near a handful of properties he owns would not be an impermissible financial conflict because any benefit to Calvert would be shared by other similarly situated landowners.

Well, that's not exactly what they said, but more on that later. The letter to Calvert can be found here, by the way.

As much as I have the greatest respect for the Talkingpointsmemo group of websites, I think they may have missed the mark on this one as the facts tell (at the very least) a different tale.

And since, as it turns out, my own representative, Congressman Mike Doyle, is actually on the House Ethics Committee, I decided to drop him an e-mail for a chat on the matter. And though I'm just a poor wayfaring blogger, he got back in contact straightened out a few things.

First thing he said was the reporting was "far off base" and quickly added that the fact that Calvert went to the ethics committee with this earmark in the first place was due to the transparency reforms implemented by the new Democratic leadership when they took control of the House in January, 2007.

From the Ethics Committee website:

The House Rules for the 110th Congress changed the Code of Official Conduct regarding earmarks. This provision requires that a Member, Delegate, or Resident Commissioner who requests an earmark or a limited tax or tariff benefit to provide certain information regarding the request and its purpose to the committee of jurisdiction. An Advisory Memorandum providing guidance in this matter was released on March 27, 2007.

By the way, here's the "Advisory Memorandum" mentioned above.

According to Doyle, Calvert would not have had to approach the ethics committee in the 109th Congress and it would not have been as clear who would have popped an earmark like that into a budget prior to these recent Democratic reforms. It just never would have been this out in the open previously.

In fact, Doyle said, Calvert went to the committee to cover his ass about that earmark because of the transparency reforms.

Doyle clarified a few other things as well. The letter to Calvert was actually from the committee counsel, not from the ethics committee itself as the matter was never actually before the committee itself. The letter was a response to an inquiry by Calvert. He added that these sorts of inquiries are now "routine" and that there are probably 100 advisory requests pending "even as we speak."

Let's get on to specifics. TPMMucker Paul Keil writes that Calvert's properties were "in walking distance" to the proposed transit center. Well if you take a look at the letter to Calvert, you get the actual distances that Keil regards as "walking distance." There's one property a tenth of a mile away. Ok that's certainly walking distance.

But the next closest properties listed, a mini-storage facility and a multi-tenant building, are each a half-mile away. The next closest, an office/retail building is seven-tenths of a mile away. Then there's a property eight-tenths of a mile away. Then two properties each more than a mile away. That's walking distance?

Then there's the conclusions of the committee counsel itself. It goes a little beyond what Keil wrote. The conclusion is that since they could find no "anticipated or predictable" as opposed to "speculative" effect on the properties as a result of the earmark, there's no direct conflict. In other words, the effect has to be clearer than what had been presented. From the letter:

Furthermore, we recognize that Members typically own a personal residence or other types of property in their Congressional district, and that one of a Member's principal responsibilities is to promote the interests of the district, including by seeking funding for roads, utilities, and other public works projects.

And finally:

Based on the representations made to the Committee in this matter, we conclude that it is within your discretion for you to conclude that your properties do not constitute a financial interest in in the earmark supporting the Corona Transit Center. Of Primary consideration here, it is our understanding that the Corona Transit Center project will not immediately affect the use of any of your properties or provide any other direct or unique benefits to the properties.

Doyle decoded the first sentence of that paragraph. By putting it that way ("within your discretion") they were saying that while it may be technically legal, think twice about it because there may be the appearance that it's not right. And again it's that old transparency thing at play. Calvert approached the committee with details about the earmark and his properties near by. Now there's a paper trail and Doyle doubts that Calvert will go ahead with the earmark, now that everyone knows that he owns property near it.

It might be technically legal, but it just looks bad. And now everyone knows.