Amending the Rules of the House of Representatives to provide increased accountability and transparency in the Committee on Standards of Official Conduct.

I thank the gentleman from California for yielding.

Mr. Speaker, I was very excited to be part of this ethics task force. And led by the able leadership of Chairman Mike Capuano and Ranking Member Lamar Smith, I was very hopeful that we could work in a bipartisan fashion to come up with a good, solid ethics bill.

We held over 30 hearings. We worked very hard. And I believed we were on track until about last August. And sometime during last August, the outside special interest groups got to the Democrat leadership, and this whole effort was derailed.

And what came out of this was terrible and I will just give you one specific example. This whole thing puts all of us in a vulnerable situation, but in this one specific instance there are six members appointed to the Office of Congressional Ethics, the OCE, and there are supposed to be joint appointments with the Speaker of the House and the Minority Leader. But there is a caveat. If you cannot get an agreement, and just hold off for 90 days and get your respective appointee in this position as one of the six members of the OCE.

Now, why should we be concerned that this was hijacked by the outside groups? These outside special interest groups exist to chastise and press charges against Members of Congress. That's how they raise their money. That's why they exist. And they're on both sides of the political spectrum; so all of us are vulnerable. These groups take sides in political battles, and use any scrap of evidence they can find to try to press charges against Members of Congress.

In fact, if you have ever amended your FEC report, there are examples of how they've used that as alleged unethical charges against Members of Congress. And nothing disqualifies these members of outside groups from sitting on the OCE as one of six members.

So we're all vulnerable by these politically motivated people being incorporated into this whole process to make sure that all of us have a chance to face charges, whether justified or not.

Now, just think of your worst critic. They're out there in the blogs. They're in the call-in for your newspapers. These are the types of folks that you will be confronted with if we allow these outside groups to inject themselves in this process.

And how will you respond? Well, the first thing you will have to do is go out and hire a lawyer, and those lawyers are about $1,000 an hour; and a minimum investigation, even when you're innocent, is going to a quarter of a million dollars. Now, some people don't mind that. Some have plenty of money to burn. But I think a majority of Members here in this Congress realize that even a false charge can bankrupt them and force them into a position where they have no financial substance. That will happen in this ethics bill.

This is just the tip of the iceberg of how this process got hijacked and how this ethics bill is not fair to Members of Congress. It's unconstitutional. And I think this rule ought to be defeated. And if you have a single ounce of self-preservation, you will vote ``no'' for this rule and vote ``no'' against this unconstitutional bill.

Mr. Speaker, rise today with reluctance and regret that I am unable to support the House rule change before us today.

Exactly 12 months ago I was both honored and excited to receive the appointment from my leader to serve on the Speaker's Special Task Force on Ethics Enforcement. At the time, like my Republican colleagues, I was excited about the possibility of forging together a bipartisan piece of legislation that would address the fundamental issues that are currently plaguing our ethics system in Congress. Under the capable and civil leadership of Chairman Mike Capuano and Ranking Member Lamar Smith, I was hopeful of what we could achieve.

For the past 13 years I have observed the House ethics process and came to the conclusion early on that our system was not transparent enough, not efficient enough, and simply not effective. In a word, our system was broken. Sadly, today, I am forced to accept that the Speaker's Task Force has failed its mission and has produced a partisan, undemocratic, and unconstitutional bill that I am convinced will only compound our current problems--and further frustrate the wishes of the American people for this House to clean up its act.

While the Democrat proposal is flawed in several substantial ways, its biggest and most glaring failure is that it turns a democratic ethics process into an undemocratic and partisan one where justice can be easily denied. Under the proposal before us today, an investigation can he initiated by the action of only two of the six members of the new independent Office of Congressional Ethics, OCE.

The legislation also mandates that names of the two members remain secret and kept from the American public and the accused Member of Congress. An earlier version of this legislation required a majority vote of the new committee before proceeding to a second-phase review of the pending matter. However, under the version we are debating today, a full-fledged review and investigation may occur without a majority vote of the OCE. This proposal jettisons the basic and fundamental right of democracy and fair play.

Mr. Speaker, in addition to being undemocratic, this proposal also contains several provisions which are most likely unconstitutional and therefore unenforceable. The most egregious provision is the creation of the OCE.

In its 200+ years of existence, Congress has never seriously contemplated handing over one of its most important responsibilities-- that of regulating and disciplining its own Members--to an outside entity that is unaccountable to the American people unlike elected Members of Congress.

The legislation before us today would do just that. However, instead of abdicating our constitutional responsibility as specified in article I, section 5 of the United States Constitution, I propose that our task force goes back to work--and finds a solution which bridges our partisan differences while adhering to our constitutional obligations.

Our Ethics Committee is broken--so why not focus on and fix the problem instead of creating a whole new set of problems that will only serve to further undermine our ethics process? If Members of Congress are truly interested in repairing our ethics process--if Members of Congress are truly committed to restoring honor and integrity to this House--it's essential that we come together in a bipartisan spirit and develop a package that both sides can agree upon and support. Unfortunately, today's legislation falls way short of hitting that mark.

Mr. Speaker, in addition to abolishing basic rights of democracy and fair play--this proposal promises to undermine ongoing Ethic's Committee investigations and will likely impede Department of Justice investigations. In just one example, this legislation imposes an unreasonable period of time to investigate unethical conduct.

Quick and incomplete investigations can lead to unjust results-- including charging the innocent and letting the guilty off free. It's imperative that our processes of maintaining the highest standards of ethical behavior supports and complements the House Ethic's Committee-- regrettably, this bill will only undermine its ability to do its job.

On September 26, 2007, David H. Laufman, a former Investigative Counsel for the House Ethics Committee from 1996-2000 and a former federal prosecutor opined the following in Roll Call:

``[T]he creation of an outside ethics panel will not solve

the core problems that currently afflict the House. Real

ethics reform

in the House begins with willingness on the part of both

party leaderships to refrain from political intervention in

the ethics process and give the ethics committee the

independent, professional resources it needs to do its work.

. . . Creating an outside panel, moreover, would simply

create another layer of ethics bureaucracy that further slows

down a process already characterized by sluggishness.''

At this time I would like to submit Mr. Laufman's entire Op-Ed into the Record.

Mr. Speaker, instead of maintaining and fostering the cause of justice and ethical behavior in Congress, this piece of legislation may actually thwart the efforts of the Ethics Committee and Justice Department to investigate unethical behavior and punish Members appropriately. Again, if the Ethics Committee is broken lets fix or replace it--but why in the world would we want to ignore the problem by creating an additional layer of legislative redtape--which will only serve to work against the purposes of the Ethics Committee--instead of enhancing its ability to get its job done fairly and expeditiously.

Mr. Speaker, it was an honor to serve on this Task Force and work with my 7 distinguished colleagues. Over the past 12 months I participated in over 30 hearings, listening to testimony from a wide variety of interests on this important matter before us today.

While various organizations expressed their support for the concept of creating an independent body--and their endorsements have been promoted today in this debate--it would be unfair to not recognize that several witnesses expressed their misgivings and concerns with the direction this legislation would take the House ethics process. Witnesses I suggest were more qualified then others to testify to the pros and cons of creating a new independent body.

Last March the task force met in private with former Congressmen Bob Livingston, R-LA, and Louis Stokes, D-OH, regarding their experiences from serving as cochairs of the last House Ethics Task Force in 1997. Both men had served on the House Ethics Committee and were highly esteemed by their colleagues. Congressman Stokes was a former chairman of the House Ethics Committee and shared the following statement with our task force members:

I strongly believe the current Ethics Committee structure

should be preserved. I think Congress has a constitutional

obligation to police its members. The mechanism exists to

hire outside counsel whenever necessary, as the Committee did

in the Abscam cases and also in the sex and drug

investigations. In both cases the House received accolades

for its work. A dangerous aspect of investigations by either

a House Committee or an outside panel is interference with

Justice Department investigations.

At this time I would like to submit Mr. Stokes entire written statement into the Record.

Mr. Speaker, I would like to raise one additional point that warrants discussion. Regardless of the outcome of today's vote, I believe it is important that this House give serious consideration to providing attorney's fees for Members of Congress that may become the subject of an OCE or Ethics Committee review in the future--but are subsequently cleared of any baseless charges. Under the OCE structure set up in this rule, it will be very easy for any two members to initiate an investigation--for any reason--without any real evidence--which in turn will force any discerning Member to hire a DC attorney to make sure their rights are protected and their name is not damaged in the process.

Colleagues do not be fooled--this will become inevitable if this rule is enacted today.

I want to thank Chairman Capuano for highlighting the issue of attorney's fees in his Report and also commend him again for his leadership and hard work with the task force. While I am unable to support its outcome today, I know that every member of the task force is sincere in their desire and efforts to help fix what's wrong with our current ethics process. Unfortunately, today's rule change falls way short of our goal.

Mr. Speaker, let me acknowledge that we started out on a great glide path of bipartisanship--but eventually the Democrat leadership was influenced by various outside organizations that refused to accept any compromise that involved maintaining the current democratic rules of justice and fair play. For example, the task force members--both Democrat and Republican--had agreed in principal to allow outside entities the right to submit ethics complaints to the OCE.

In fact, this provision was requested by these various organizations and highly promoted as a vehicle to bring much needed credibility to the current ethics process. And, while I had some reservations about it I was willing to support this provision.

Unfortunately, these same organizations were not willing to be subjected to the same level of scrutiny and transparency they wished to impose upon Members of Congress--namely the disclosure of their largest donors who may or may not have an ax to grind with a Member of Congress. One official quoted in an article on the issue stated: ``you can. imagine how upsetting this [provision] is to the donor community.''

Indeed.

And that was the end of that.

In closing Mr. Speaker, let me also thank Ranking Member Lamar Smith for his leadership, experience, expertise, and tireless efforts that he brought to this important effort.

Let me also thank the capable staff that assisted us throughout this process, including: Paul Taylor, Chief Republican Counsel to the House Judiciary Subcommittee on the Constitution; Ed Cassidy, Senior Advisor and Floor Assistant to the Republican Leader, and my Chief of Staff, Jeff Kahrs.

Before I end I can't help but note the irony in spending well over 100 hours of my time hearing testimony and discussing the significant ramifications of each provision within this legislation--the most sweeping ethics legislation in over 10 years--and the Democrat leadership decision to bring this bill to the floor--under the cover of darkness--and under a closed partisan rule which only allows 30 minutes of debate on each side--that's less than 30 seconds for each Member of this House to be heard on this topic.

Mr. Speaker, I hope that Members will not be fooled by the lack of an open and full debate on this important issue. I strongly oppose this rule change and respectfully urge all Members--Democrats and Republicans--to reject this proposal. It's time for the Ethics Task Force to get back to work and find a bipartisan solution to our failed ethics process that is supported by a majority of both Republican and Democrat Members. Anything less then a bipartisan solution will result in partisan failure.

[From Roll Call, Sept. 26, 2007]

Outside Panel Won't Resolve Core Ethics Problems

(By David H. Laufman)

Now that President Bush has signed into law S. 1, the

Honest Leadership and Open Government Act of 2007, it is fair

to ask what sort of enforcement regime for the new rules

Members of Congress can expect from the Senate Ethics

Committee and the House Committee on Standards of Official

Conduct, also known as the House ethics committee. As in so

much of life, the answer is: It depends.

The Senate Ethics Committee has long functioned quietly and

methodically to evaluate ethics complaints and allegations of

misconduct in a professional, nonpartisan manner. That track

record reflects the relative collegiality of the Senate and

the inclination of the respective party leaderships to leave

ethics matters ``to the professionals'' for sorting out.

There is every reason to expect that the Senate committee

will bring the same balanced enforcement to the new rules

that has characterized its operations in the past.

The House ethics committee, however, is a different matter.

Although the committee has undertaken some tough

investigations in recent years--most notably, its inquiries

regarding former Majority Leader Tom DeLay (R-Texas) and

former Rep. Bud Shuster (R-Pa.)--it has been cleaved by

partisan turmoil and deadlock for much of the period since

the conclusion of the cases against former Speaker Newt

Gingrich (R-Ga.) in 1997. The nadir of this devolution

occurred in 2005, when two seasoned attorneys on the

committee's nonpartisan staff were fired in apparent

retribution for their work on the DeLay investigation, and

two committee members believed to be ``politically

unreliable'' by their party leadership were summarily

jettisoned.

Now, there is potential for even further disequilibrium in

the House ethics process. At issue is the pending

determination by the Special Task Force on Ethics Enforcement

as to whether an outside panel should be established to

conduct preliminary review of ethics complaints and make

recommendations to the House ethics committee on whether

investigative action should be undertaken.

As a former investigative counsel to the House ethics

committee who investigated both Democrats and Republicans--

and as a former federal prosecutor--I fully appreciate the

importance of conducting thorough, independent

investigations. I also appreciate that the establishment of

an outside ethics panel might enhance public confidence in

the integrity of the House ethics process. But the creation

of an outside ethics panel will not solve the core problems

that currently affect the House.

Real ethics reform in the House begins with a willingness

on the part of both party leaderships to refrain from

political intervention in the ethics process and give the

ethics committee the independent, professional resources it

needs to do its work. All the new ethics laws and rules in

the world will amount to nothing unless the party leadership

on both sides refrain from politicizing the ethics process,

the committee members ultimately charged with implementing

them are committed to consistent, nonpartisan enforcement,

and committee members do not have to worry about retaliation

from their party leadership or fellow members.

Establishing an outside ethics panel also would constitute

a historic abdication of the House's constitutional

responsibility for self-regulation. Article I, Section 5,

Clause 2 of the U.S. Constitution states that ``Each House

[of Congress] may determine the Rules of its Proceedings,

punish its Members for disorderly Behavior, and with the

Concurrence of two thirds, expel a Member.'' Although the

drafters of the Constitution chose the permissive ``may''

rather than ``shall,'' it is clear that they intended to

create a system of peer review where Members of Congress

shoulder the responsibility for weighing allegations of other

Members' misconduct. The establishment of an outside panel to

evaluate ethics complaints would be an unprecedented

deviation from more than 200 years of self-regulation.

Moreover, it would be tantamount to an admission that the

House is now unable to fully govern itself and needs

protection against its own improper impulses.

Nor, if established, would an outside panel likely improve

the House ethics process. First, none of the publicly

reported proposals under consideration to establish an

outside panel divests the House ethics committee of ultimate

decision-making discretion as to whether ethics violations

occurred or what sanctions to impose if a violation is found.

Creating an outside panel, moreover, would simply create

another layer of ethics bureaucracy that further slows down a

process already characterized by sluggishness. Second, making

informed assessments of allegations of misconduct requires

more than the mere application of law or rules to facts: It

also requires a nuanced understanding of the institutional

context in which the alleged misconduct occurred. Arguably,

the need for such a nuanced understanding is particularly

great in the case of a political institution that has its own

unique cultural attributes. It is possible that retired

Members of Congress could bring the necessary perspective to

bear if appointed to an outside ethics panel. It is less

likely that retired jurists, academicians or individuals from

other professions would be equally capable of making the

necessary contextual judgments.

That the committee would retain autonomy to reject the

recommendations of an outside panel ignores political

realities surrounding ethics scandals. If, for example, the

outside panel recommended that the committee initiate an

investigation--a recommendation that almost certainly would

become publicly known--the pressure on the committee from

interest groups and the news media to accept the panel's

recommendation would be formidable.

Clause 1 of House Rule 23, which comprises the Code of

Official Conduct, states that ``A Member, officer, or

employee of the House of Representatives shall conduct

himself at all times in a manner which shall reflect

creditably on the House of Representatives.'' The special

task force would bring credit on the House by rejecting the

idea of an outside ethics panel and recommitting the House to

ethics enforcement marked by bipartisanship and consensus.

Mr. Speaker, I actually find very little in Mr. Dreier's comments I disagree with. I agree with almost everything he has said, and I commend him for that very thoughtful speech.

Mr. Speaker, before I comment on the specifics, I'd also like to thank the members of the task force, especially Mr. Smith, who was the ranking member for Republicans. It was a great opportunity to become a friend of another Member. We did disagree in the end, but I found it to be a very thoughtful, fruitful, and enjoyable experience.

I also want to thank other members of the committee: Mr. Price, Mr. Scott, Ms. McCollum, Mr. Meehan before he left, Mr. Hobson, Mr. Camp, and Mr. Tiahrt. I thought we had some great meetings, and it was a pleasure to me to engage in this endeavor.

I also want to thank the Members of the freshman class of 2006. They're the ones who really kept the pressure on us to try to fix our ethics rules. They came here on the backs of public discontent with our actions, and they have kept our feet to the fire. I thank them for that.

I also want to thank the many people that helped us walk through this. There are many people whom I will list in my extension of remarks at a later time because there are too many of them. I do want to point out one staff member, in particular my own, Christina Tsafoulias, who worked countless hours trying to get through this. I want to thank her publicly for that.

On the specifics, again I think I agree with most everything Mr. Dreier said. This is really all about public trust, but the point that seems to be missed is the public does not trust us on ethics issues at this point. Maybe that's fair. Maybe that's unfair. Maybe it's based on reality. Maybe it's based on perception. But it is a fact. They do not trust us. They don't trust us for many different reasons. As I see it, I can point to two different issues in particular: the perception of the good-ol'-boy network. Now, maybe that's not fair, but it's certainly what our constituents think. They think we are all here protecting each other. They think that we operate beyond closed doors and smoke-filled rooms to make sure that

no bad things get said about our colleagues. I don't think that is true, but that's certainly the perception. When people don't have trust in the system, they don't have trust in us, and I think that's an important thing to address.

The other part of it, as was already pointed out, is transparency, or the lack thereof. That encourages people to think that the good-ol'-boy network is all that we rely on. As far as partisanship, I totally agree. Any system that results in partisanship on ethics matters is unsuccessful. But partisanship has two points: yes, there is partisanship to initiate witch hunts, and that is a concern, I believe, this proposal addresses that by requiring joint appointments and by requiring one Democratic appointment and one Republican appointment to initiate a review. It totally undermines any legitimate concerns about partisanship witch hunts.

But the other side of the coin that nobody here wants to talk about is the potential for partisan stonewalling, which we have suffered in this House in the past where one party simply says, You cannot look at our Member. Period. End of discussion. And if you do, we will remove Members from the Ethics Committee who look at that Member, which has happened in this House, and everybody knows it.

And to think that partisanship is only a one-sided witch hunt is a mistake. Partisanship is also stonewalling. It's also protecting our fellow colleagues who may or may not have done something wrong simply because they come from the same party as we do. That's just as wrong as partisan witch hunts, and I believe this proposal addresses that as well.

I also want to comment on the two proposals that were dropped on us lately. One of them had been in one form or another for a while; but both of them, in their final form, were dropped on us lately. I will simply tell you that, yes, we did look at them; and I have an opinion here which I will submit to the Record from the Congressional Research Service and one from the House counsel that states by bringing non- Members into a Member-oriented item to have official votes on matters in this House is likely to be unconstitutional.

Now, I know that some people don't want to hear it, and certainly it won't be definitive until the Supreme Court were ever to act on it, but there is all of these constitutional questions on everything we do. I, for one, am a lawyer. I try to figure out how unconstitutional an issue might be; and if the answer is it's more likely to be unconstitutional than not, I won't do it. If the answer is I think it's constitutional, you try it. If it gets knocked down in court later on, so be it.

So these two proposals, according to two independent agencies we could get direct answers on quickly, believe that it's unconstitutional.

As far as the rule goes, I have had a year's worth of debate, and I would have welcomed anybody to come to any of our meetings and participated at any time they wanted to have the hours-on-hours of discussion. At the same time, this is a pretty simple proposal. I know some people don't like the concept of an independent entity having something to do with our ethics process. I respect that opinion. I disagree with it, but I respect it. It is a fair concern. At the same time, that's what this is.

An up-or-down vote on that, I think, is a fair thing for the American people to let them know how we feel about this concept.

The material I referred to previously I will insert into the Record at this point.

Congressional Research Service,

Washington, DC, March 4, 2008.

Memorandum

Subject: Permissibility of Non-Members Being Appointed to a

Committee of the House of Representatives.

From: Jack Maskell, Legislative Attorney, American Law

Division.

This memorandum responds to requests from congressional

offices for a brief overview of the permissibility and

constitutionality of allowing the House to appoint non-

Members, that is, persons who are not current Members,

Delegates, or Resident Commissioner, to a committee of the

House of Representatives, with full voting privileges in

committee. Although the House of Representatives has

extensive authority and discretion concerning its own

internal proceedings and rules, the Constitution requires

that Members of the House be elected every two years by the

people of the several states, and thus a rule which would

allow persons who are not elected to the House to carry out

the constitutional functions of the House of Representatives

through full voting membership on one of its committees would

raise constitutional questions.

Each House of Congress generally has broad authority to

determine its own internal, procedural rules, and to

establish those procedures and internal structures within the

body to assist in implementing the institution's

constitutional duties. Under Article I, Section 5, cl. 2 of

the Constitution, which grants to each House the express

authority to ``determine the Rules of its Proceedings * *

*,'' the institution of the House, within the framework of

express constitutional requirements, has broad discretion

concerning its own internal operations and functionings as

befits a legislative assembly which is an independent, co-

equal branch of government under our tripartite governmental

system of separated powers. Under this authority, the courts

have traditionally given deference to the explication,

application, and definition of internal procedural matters in

both Houses of Congress. As noted by the Supreme Court in

United States v. Ballin: ``The question, therefore, is as to

the validity of this rule, and not what methods the Speaker

may of his own motion resort to * * * Neither do the

advantages or disadvantages, the wisdom or folly, of such a

rule present any matters for judicial consideration. With the

courts the question is only one of power. The Constitution

empowers each house to determine its rules of proceedings. It

may not by its rules ignore constitutional restraints or

violate fundamental rights, and there should be a reasonable

relation between the mode or method of proceeding established

by the rule and the result which is sought to be attained.

But within these limitations all matters of method are open

to the determination of the house, and it is no impeachment

of the rule to say that some other way would be better, more

accurate or even more just. It is no objection to the

validity of a rule that a different one has been prescribed

and in force for a length of time. The power to make rules is

not one which once exercised is exhausted. It is a continuous

power, always subject to be exercised by the house, and

within the limitations suggested, absolute and beyond the

challenge of any other body or tribunal.

When there are interpretative and definitional ``gaps'' in

language of constitutional provisions, for example, the

courts have allowed each House to fill in the details of such

constitutional provisions regarding its internal procedures.

As noted by the Supreme Court in the case regarding the

procedure that the Senate adopted to carry out its

constitutional duties to ``try'' impeachment cases: ``As a

rule the Constitution speaks in general terms, leaving

Congress to deal with subsidiary matters of detail as the

public interests and changing conditions may require * * *.''

The Supreme Court in Nixon v. United States, thus deferred to

the institution of the Senate in its determination under its

own rules of proceeding as to the method that the Senate uses

to ``try,'' as required by the Constitution, an impeachment

of a federal judge. Specifically, the Court deferred to the

judgment of the Senate to use only a small portion of the

entire membership of the Senate body, in the form of a

committee, to actually hear and take the evidentiary

testimony (and then to report to the full Senate which votes

to convict or not on the impeachment), since there was a

``textual commitment to a coordinate political department''

of the matter in the Constitution.

The courts have thus recognized the authority of

committees, and have allowed the committees broad

investigative and oversight authority, for example, because

committees of the House act as the House for those purposes

that are expressly delegated to those committees by the Rules

of the House (and have only those authorities and powers that

are in fact delegated from the full institution). The Supreme

Court has recognized the House's ``utilization of its

committees'' to carry out a ``legislative function belonging

to it under the Constitution.'' Since the committees act as

and on behalf of the House pursuant to its Rules, are

creatures of the House, and are in legal and actual essence a

division or sub-entity of the entire institution (carrying

out and exercising the constitutional functions of that

institution delegated to them), there is a very strong

indication that such committees exercising such functions may

generally be composed only of Members of the House.

Article I, Section 2 of the Constitution provides that

Members of the House must be elected every two years by the

people of the several States. Membership in the House, and by

extension on committees acting for the House, would thus

appear to require that a Member be elected by the people of

the several states. In a brief review of legal sources, we

have not discovered any precedent where non-Members of the

House have been members of a House committee with full

privileges and votes similar to any Member of the House, and

thus we have found no judicial decisions and rulings on its

permissibility, other than in the case of the elected

delegates or resident commissioners in the House. In Michel

v. Anderson, the United States Court of Appeals, District of

Columbia Circuit, found that there exists what one might

describe as an ``historical exception'' to the general

constitutional proposition that the House must only be made

up of Members elected from the several states, and that

exception, recognized in law from the

very first Congress (1 Stat. 50, 52 (1789)), was that people

in territories and districts under the jurisdiction of the

United States could have a non-voting delegate or

commissioner in the House (that is, that such delegate may

not vote on legislation on the floor) to ``represent'' them:

``The territorial delegates, representing those persons in

geographic areas not admitted as states, then, always have

been perceived as would-be congressmen who could be

authorized to take part in the internal affairs of the House

without being thought to encroach on the privileges of

membership.''

Such non-voting representatives, in the form of elected

delegates from the territories and districts not admitted as

states, have in practice sat on House committees, and could,

according to the court, if authorized by the House, vote in

the ``Committee of the Whole'' (but only if their vote was

not the determinative vote), but could not vote on

legislation on the floor.

However, the court in Michel v. Anderson expressly noted

that this historical exception for territorial delegates was

limited, and noted, in dicta, that such exception and

permission for territorial delegates to participate in

certain internal matters in the House could not be extended

or applied to allow the House to adopt a rule putting other

non-Members on House committees: ``The appellees, for their

part, forthrightly concede that the House could not permit

persons other than the traditional delegates to perform the

role currently played by the delegates. It would, thus, not

be open to the House to authorize by rule, say, the mayors of

the 100 largest cities to serve and vote on House

committees.''

In the case of allowing persons not elected as Members of

the House to be full voting members of a committee of the

House, such as in certain proposals concerning the House

Committee on Standards of Official Conduct, the precedent of

allowing territorial delegates to participate in certain

internal processes of the House, including voting in

committee, may be distinguished on three basic grounds.

First, there is historical precedent recognized from the

first Congress for the people of territories and districts,

not recognized as states, to have some limited, non-voting

representation in the House. In the proposals seeking to add

non-Members to the standing House Committee on Standards of

Official Conduct, no such purpose of representation of

persons in geographic regions under the jurisdiction of the

United States is provided, intended, or accomplished.

Secondly, as discussed above, the court noted in its opinion

that this historical permission for territorial delegates,

provided by law, to participate in certain House proceedings,

was a limited exception, and would not open the House to

``authorize by rule'' the addition of other persons (such as

mayors of cities) ``to serve and vote on House committees.''

Finally, the court noted that the voting of a territorial

delegate, even in a House committee or in the ``Committee of

the Whole'' (with the revote provision), is ``largely

symbolic'' because the vote could not immediately affect

legislation, such as a vote on legislation on the House floor

would. The duties and authority of the House Committee on

Standards of Official Conduct to both recommend the

discipline of a Member directly to the House, and to issue a

``letter of reproval'' on its own accord, upon the requisite

number of the votes of its members, may be seen as part of

the express constitutional authority of the House under

Article I, Section 5, cl. 2, to ``punish its Members for

disorderly Behaviour.'' As such, these activities might be

considered part of the direct and express constitutional

function of the House, delegated to and exercised in some

part by one of its committees made up of its own Members,

and thus something more than merely the ``symbolic act''

which was the subject of the Michel v. Anderson case.

A committee of the House, such as the House Committee on

Standards of Official Conduct, could clearly employ staff to

assist the committee in carrying out its functions, and could

use an ``outside counsel,'' an advisory committee, or ``task

force'' made up of non-Members (and even including on its

membership some sitting House Members) to assist the

committee in its investigative work, fact-finding, and even

recommending to the Committee that it take certain action on

matters. However, it may be argued that under existing

decisions and precedent, allowing persons who are not elected

as Members (or as delegates representing persons under the

jurisdiction of the United States in geographic regions that

are not states) to be full voting members of a House

committee exercising the constitutional functions of the

House delegated to it could, in the words of the U.S. Court

of Appeals, ``encroach on the privileges of membership.''

Jack Maskell

Legislative Attorney.

Mr. Speaker, I thank my friend for yielding me the customary 30 minutes, and with that, I yield myself such time as I might consume.

(Mr. DREIER asked and was given permission to revise and extend his remarks.)

Mr. Speaker, as legislators there can be no issue of more fundamental importance than the strength and the integrity of our institution. None of our work here, none of our legislative or political priorities matter if we don't have the integrity and the trust of the people that are necessary to be an effective body.

The Founders of our Republic, the authors of our Constitution, were well aware of the inherent challenges in making government fully accountable. They understood human nature and the pitfalls that go with investing power in individuals.

After all, Madison famously wrote in Federalist 51: ``But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.'' Those were the brilliant words of the Father of our Constitution.

Our Founders recognized, Mr. Speaker, these challenges and knew the answer was to empower institutions rather than individuals. They knew that

the House of Representatives, like all government institutions, must have the authority and the imperative to preserve its integrity and to punish those individual Members who would tarnish its reputation, diminish its stature, and erode its ability to serve as the representative of the people.

They gave explicit constitutional authority to do so. As we all know, Article II, section V, clause 2 of the Constitution directs Congress to ``determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.''

Ultimately, Mr. Speaker, they knew that the most important guarantor of accountable and trustworthy government is democracy itself. No individual Member of Congress ever acts with impunity because we are judged every 2 years by the people who sent us here. And, of course, no one is above the law.

As we speak, there are former colleagues of ours serving time in jail for their abuses of the offices that we hold. Outside watchdog groups, the media, individual voters and our criminal justice system are all working, and working quite effectively, to shed some light on this body and ensure Members are held accountable.

Externally, Mr. Speaker, the pressure is on. The problem is how to deal with accountability internally; how do we fulfill our constitutional imperative to police ourselves and preserve the integrity of this body. Our current process is broken. It's hamstrung by two key problems: partisan deadlock and a lack of transparency. This a serious challenge. It is so serious that some Members of this body apparently feel that we are not up to the job.

A task force was established to consider the question of whether we should just throw up our hands, concede that we are not capable of fulfilling our constitutional duty to police ourselves and set up another body to do it for us.

This was a dubious task to begin with, but I believe that it was tackled with all sincerity and commitment. Mr. Capuano and Mr. Smith took on the role assigned to them and very carefully considered the question. But the breakdown came when it was time to make its recommendation.

The proposal put forth by Mr. Capuano, which ignores the real problem of a broken, internal ethics process, and in fact exacerbates the problem by adding a new partisan outside body, was not endorsed by his Republican counterpart. It met immediate criticism on both sides of the aisle. The Democratic leadership had no choice but to pull it.

Now, Mr. Smith offered a very thoughtful alternative, and we were told that consideration of Mr. Capuano's proposal was being postponed in order to work with Mr. Smith and consider his suggestion. That bipartisan negotiation, to my knowledge, Mr. Speaker, never took place. Mr. Wamp and Mr. Hill also submitted a proposal, a bipartisan proposal; but it was disregarded as well. Instead, we are back here confronting essentially the same deeply flawed proposal that was yanked from the schedule a couple of weeks ago.

They may have put lipstick on that pig, but it is still a pig, Mr. Speaker. This proposal still sets the stage for partisan witch hunts. It may take bipartisan support to initiate investigations, but they can be advanced purely on partisan lines. So at the very beginning, when little information is known, bipartisanship is called for. But once the process begins, the flood gates for partisan attacks are wide open. The minor modifications made to the original proposal do nothing more than attempt to obfuscate the utterly partisan nature of the proposed Office of Congressional Ethics.

As we have seen countless times under the Democratic leadership, a bad proposal demands a draconian process to get it through. And the worse the proposal is, the worse the process needs to be. We've seen an explosion of closed rules in this Congress. And what does a closed rule do? It severely restricts debate and shuts out all amendments. This has become the go-to rule for this new majority. And that's as bad as it could possibly get. Right? There is nothing worse that they could do than to shut out all amendments and alternatives. Right?

I used to think so until this point, until we saw this rule. This one absolutely takes the cake, Mr. Speaker. In case you missed it when the Clerk read it, and allow me to repeat it, pay attention or you will miss it again: ``Resolved, that House Resolution 895, as amended by the amendment printed in the report of the Committee on Rules accompanying this resolution, is hereby adopted.'' That's what the resolution says. This rule actually provides for passage of the underlying proposal without so much as one single word of debate on this proposal. They simply declare it into existence. No debate, no vote. A closed rule may shut out dissent, but this rule eliminates deliberation altogether.

Before this Congress even began, our distinguished Speaker, my fellow Californian, committed to ``the most honest and open government,'' has managed to stoop to unprecedented lows in closed, inaccessible government that operates purely on back-room deals with no place for open, honest debate. And for what purpose? To ram through a policy so bad it has been widely and heavily criticized by both Democrats and Republicans. A policy to turn our ethics process into nothing more than cheap partisan games and a policy of abandoning our constitutional imperative to police ourselves and ensure the integrity of this great institution. This is terrible policy, brought to us by a singularly terrible rule.

I urge my colleagues to reject the rule and demand real ethics reform that actually addresses the root problems in our current system and accepts responsibility, as the Constitution directs us to, for our own ethics process.

With that, I reserve the balance of my time.

Mr. Speaker, I am happy to yield 2 minutes to a hardworking member of this so-called bipartisan task force on ethics reform, my friend from Michigan (Mr. Camp).

Mr. Speaker, at this time I am happy to yield 4 minutes to my friend from Pasco, the former chairman of the Committee on Standards of Official Conduct, the present ranking member, Mr. Hastings.

Mr. Speaker, I'm happy to yield 5 minutes to my very good friend, the gentleman from San Antonio, the Republican leader of this important task force, Mr. Smith.

Mr. Speaker, at this time I am happy to yield 2 minutes to the distinguished Republican whip, the gentleman from Missouri (Mr. Blunt).

Mr. Speaker, I would just say in response to my friend that bipartisan input has, unfortunately, not taken place. The gentleman is totally incorrect.

And to confirm that, Mr. Speaker, I am happy to yield 3 minutes to a hardworking member of the task force, my friend from Goddard, Kansas (Mr. Tiahrt).

(Mr. TIAHRT asked and was given permission to revise and extend his remarks.)

Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 1031 and ask for its immediate consideration

Mr. Speaker, for the purpose of debate only, I yield the customary 30 minutes to the gentleman from California (Mr. Dreier). All time yielded during consideration of the rule is for debate only.

General Leave

Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days within which to revise and extend their remarks and to insert extraneous materials into the Record.

Mr. Speaker, I yield myself such time as I may consume.

If there is time available, we will entertain that.

Yes.

If there is time remaining that hasn't already been assigned or requested, we will certainly not preclude opposition.

We're working on the list.

Mr. Speaker, I can't guarantee the time.

Mr. Speaker, I reclaim my time.

Mr. Speaker, H. Res. 1031 provides for the adoption of H. Res. 895, which establishes an Office of Congressional Ethics in the House of Representatives. I rise in support of this important rule that will allow us to enact one of the most important ethics reforms this House has ever seen.

Mr. Speaker, the issue of ethics and accountability has long been on the minds of the people that I represent. During my campaign to become a Member of this esteemed body, everywhere I went, people asked about it. They believed and, Mr. Speaker, they were absolutely right, that the corruption and unfair influence that existed in past Congresses was having an effect on our policies, deflecting us from making progress on issues important to them and families across this great Nation.

So last year, Mr. Speaker, on my first day in office representing the people of Ohio's 13th District, I was very proud to stand on the floor of the House of Representatives to support the new ethics and lobbying reforms which have now become law. We ended the K Street Project and cut off the gifts and the perks used far too often by lobbyists to woo lawmakers. The historic rules package we passed was extraordinary in its scope and breadth. But it was only the beginning of actions necessary to restore the public trust and to cut off the abuses of recent years.

Mr. Speaker, trust is a fragile thing. It's difficult to win and easy to lose. It finds its hold on promises kept and honesty sustained and unquestionable integrity.

Many of us, Mr. Speaker, came to this new Congress as new Members dedicated to acting to change the way business was being conducted. In May of last year, I stood side by side with my freshman Democratic colleagues, some of whom we'll hear from today, calling for the creation of a nonpartisan and independent body that could initiate and examine ethics investigations. And today, we are acting to make this change happen.

With this bill, we continue the mission of pushing back against corruption. We are forging ahead to restore trust and confidence in this great institution.

Mr. Speaker, House Resolution 895 will help end the culture and abuses that have hurt the American people, both in policy and in spirit. This legislation is the culmination of hard work of Representative Capuano and the special task force on ethics enforcement. He deserves our appreciation.

Speaker Pelosi and Majority Leader Hoyer also deserve praise for their tireless efforts to move this issue forward, sometimes in contentious times. The independent ethics panel will help cure many of the inherent structural flaws that restrain our present ethics structure by eliminating the conflicts of interest that can be found in our current system. The formation of this office is the next step in our mission to repair the damage to the public trust caused by corruption and to ensure that any potential abuses in the future will be identified and addressed.

And it's important to emphasize, Mr. Speaker, that our bill establishes an independent, bipartisan office of congressional ethics. The words ``independent'' and ``bipartisan'' are worth stressing.

We may hear today about the desire of some who want to delay action on this important measure, but the American people have waited and waited, and this bill has been a long time in the making. This bill was made necessary by abuses of the past that have robbed the public of their faith and trust in this institution, and this new bill was made possible by the commitment of this new Congress to ensure that we will do what it takes to prevent the excesses and abuses of the past and hold those who violate the rules accountable.

Safeguarding the trust of the American people is not a part-time job. The integrity of this institution and the trust of the American people must be paramount. And make no mistake, we take this step not only to restore the public trust, we must take this step to ensure that we will be an institution worthy of that trust. That's why we're acting today. The American people are waiting. I urge my colleagues on both sides of the aisle to join in support of this resolution.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I would like to state again, as I did a few moments ago, that we are going to hear, evidently today, about the desire of some to delay action on this important measure. And I just restate that the American people have waited and waited. And this bill has been a long time in the making.

I yield 6 minutes to the distinguished gentleman from Massachusetts (Mr. Capuano), the chairman of the Special Task Force on Ethics Enforcement.

Mr. Speaker, at this time, it is my pleasure to yield 2 minutes to the distinguished gentleman, my colleague from Ohio (Mr. Space).

Mr. Speaker, I yield 2 minutes to the distinguished gentleman from Connecticut, my freshman colleague, Mr. Murphy.

Mr. Speaker, I yield 2 minutes to the distinguished gentleman from Indiana (Mr. Hill).

Mr. Speaker, at this time I yield 2 minutes to the distinguished gentleman from New Hampshire (Mr. Hodes).

Mr. Speaker, I yield 1 minute to the gentleman from Hawaii (Mr. Abercrombie).

I want to thank my friend from California, the ranking member of the Rules Committee, for yielding me time.

Mr. Speaker, at the outset I want to recognize the dedication and focus that Representative Capuano, the chairman of the Ethics Task Force, has demonstrated throughout this process. We know the best of intentions underly his desire and the desire of all Ethics Task Force members to enhance the integrity of the House of Representatives.

While this proposal is marginally improved over the first proposal, it still contains flaws that make it defective. The fundamental flaw of the proposal is that it fails to reform the House Ethics Committee itself. The creation of another ethics entity would be an admission of the failure of the Ethics Committee.

Americans rightly feel the ethics process simply does not work. They do not know when ethics investigations are started; they do not know the status of those investigations, and they do not know whether a partisan deadlock

has resulted in stalling an investigation forever. Americans need this knowledge, and that can only come through reforms to the Ethics Committee itself that will produce more bipartisanship and greater transparency. But the proposal before us simply adds another layer of bureaucracy on top of an already broken system. It creates an entirely new entity that invites yet more partisanship under clearly undemocratic procedures.

This country and the House of Representatives is founded on the principle of rule by majority; yet this proposal allows ethics inquiries to be initiated upon the request of only two out of the six board members. Furthermore, the proposal requires ethics investigations to go forward even when majority support among the board members cannot be obtained. This is undemocratic.

The resolution before us today is different from the original resolution and includes several changes. One amendment to the resolution now provides that the Speaker and minority leader will each nominate three members of the board with the concurrence of the other. Even under such a system, three board members will have been selected by the leader of a partisan political party.

Another amendment would provide that an investigation be terminated unless three board members affirmatively voted to proceed with an investigation. But if one board member nominated by the Speaker and one board member nominated by the minority leader agreed to initiate an investigation, but upon further review either board member decides the matter should be dismissed, the investigation can still proceed with the support of only those board members nominated either by the Speaker or the minority leader.

Not only does this resolution retain the undemocratic nature of the resolution, it also allows investigations to go forward on a purely partisan 3-3 vote. This is an open invitation to a partisan free-for- all. As a recent editorial in Roll Call stated bluntly, ``We don't deny it's a gamble.''

Under this proposal, many Members who deserve better could have their reputations unfairly diminished. A recent editorial in The Hill newspaper entitled ``Leaking Ethics'' focused on this point. It said, ``All it takes is one source to say the Ethics Committee may launch a probe into a Member and that lawmaker's reputation will be forever damaged whether he or she is guilty or innocent.''

Whether this resolution passes or not, Congress will survive. But if it passes, Members should know there is an obvious danger the ethics process will become even more partisan and that innocent Members will be hurt.

I urge my colleagues to oppose the rule on the resolution which invites partisanship, undermines democracy, and poses unacceptable risk.