Lofgren’s Silver Lining

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Jay is right; the leak itself is a bad thing. But can I just say there is some terrific news in here? The Ethics Committee is doing its job! As you might recall, that was not the case all that long ago.

UPDATE: I just chatted with Fred Wertheimer, president and founder of the watchdog group Democracy 21, and he agrees: “The lead here is it shows a remarkable amount of activity in the Ethics Committee compared with the past.” And for that, he credits the new Office of Congressional Ethics:

That office was established in 2008, as part of Speaker Nancy Pelosi’s promise in the 2006 election to “drain the swamp.” Up until then, the Ethics Committee had become a place where corruption allegations went to die — generally without a trace. The idea was to give an independent group the authority to review ethics allegations and make recommendations to the committee–and to give the committee a strong incentive to at least take a serious look at these matters. If the committee failed to act, the Office of Congressional Ethics’ report would become public.

The whole point of the new procedures was to provide “a new form of transparency and accountability” to the Ethics Committee, Wertheimer said. “They’re in a very different situation than they were in the past.”

Here’s how the process works, once the office gets a complaint:

• Preliminary reviews are initiated by 2 Board members (one nominated by the Speaker, one nominated by the Minority Leader) submitting written notice to all other board members. Board must notify both the person who is the subject of the review and the Ethics Committee at each step in process. Preliminary review phase is 30 calendar or 5 legislative days, whichever is longer. 3 Board members must vote affirmatively to move forward to second-phase review. Otherwise, the preliminary review is terminated and no publication is required.
• A second-phase review is 45 calendar or 5 legislative days, whichever is longer, with one extension of 14 calendar days possible. All matters subject to a second-phase review must be referred to Ethics Committee for its review.
• Referrals to Ethics Committee will be accompanied by two documents: (1) a Report, which recommends dismissal, further inquiry, or states that the Board vote was a tie, and (2) Findings of fact. Neither document shall contain conclusions regarding the validity of the allegations or the guilt or innocence of the person subject to the review – such matters are the sole purview of the Ethics Committee.

From there it goes to the Ethics Committee itself, where this happens:

Committee has 45 calendar or 5 legislative days from date of referral to review the matter, whichever is longer. One extension of 45 calendar or 5 legislative days is available. On most matters, at the end of the time, the Ethics Committee must issue commentary on status, along with the Report and Findings of the Board.
• On matters both the Board and Ethics Committee agree should be dismissed, no publication is required. If the Ethics Committee defers its review of a matter at the request of an appropriate law enforcement or regulatory authority (e.g., Justice Dept.), an announcement of such deferral is required.
• If the Ethics Committee establishes an investigative subcommittee, only that fact is publicized. If no conclusion after one year, the Board’s Report is published. Board Findings are published at close of that Congress.
• If the Ethics Committee requests that the Board refer a matter prior to completion of its review, it is still subject to the time limits and reporting requirements set forth above.

A number of commenters have challenged my assertion that leaks are a bad thing in the course of this process. Given the fact that many of these allegations in the past have been made for political rather than substantive reasons, it does seem reasonable to create a process in which the initial investigation is done in private. Additionally, confidentiality is likely to make it easier for witnesses to come forward with evidence.