House Republicans were guilty of political malpractice Monday night when they tried to change the way the Office of Congressional Ethics will operate in the 115th Congress. But they are to blame not because the OCE works well or is a good thing. It doesn’t and it isn’t. It needs reform, and it would not be wrong to abolish it.

What made the GOP move culpable was, rather, that it was done semi-secretly, near midnight, on a public holiday. This, naturally raised a storm of protest and, in the clear daylight of Tuesday, Republicans scrapped their plans. We applaud that decision and suggest that when the party gets around to reforming the ethics process, which is necessary, it does so with plenty of open public discussion first.

GOP lawmakers didn’t campaign on this issue or even publicly make the case for it after the election. They have the power to do such things unilaterally, because they hold the majority, but it’s their duty to make their case to the public, to Democrats and to Republicans who disagree. In this case that last category apparently included House Speaker Paul Ryan.

On the substance, House Republicans were far more justified. The Office of Congressional Office needs reform, which should be part of a broader effort to “drain the swamp,” as Donald Trump likes to say.

“Each House may … punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member,” the U.S. Constitution lays out. Until recently, the House Ethics Committee was the entity for this self-policing. Congress created the OCE only in 2008, having done without it for more than two centuries.

The creation was mostly unneeded, although the public rightly demanded reform in the wake of a string of scandals. Democrats justified the new body by pointing to Republican corruption of previous years, but it’s not as if those scandals went unpunished. House Majority Leader Tom DeLay was forced to resign, Rep. Duke Cunningham, R-Calif., was convicted and imprisoned, and voters threw the GOP out at the 2006 election. That is how accountability is supposed to work in our democracy.

OCE’s purported virtues are that it is independent of Congress and that outsiders are allowed to file ethics complaints. But let’s take a closer look at those. The second is easily dealt with; there is no reason why the House Ethics Committee should itself not take complaints from people outside Congress. There is no need for a separate office to do that.

And what about independence? Isn’t it a good idea to have a body overseeing Congress that isn’t dependent upon it? Actually, no it isn’t. Congress is the pre-eminent institution created by the Constitution. It is not exactly unconstitutional to set up an OCE, but it is constitutionally improper. The body supervising Congress should not be made up of a coterie of bureaucrats. The correct supervisory body is the sovereign people of the United States. And voters showed that they were the right people for the job when, in 2006, they threw the bums out.

In practice, the OCE’s structure allows it to operate without anybody providing oversight over it, leaving it unaccountable. If it violated due process, broke its own rules, or exceeded its mandate, nobody has the power to check it.

Watchdogs fret House ethics office may yet be defanged

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“I’m sure there will be bipartisan support for weakening it.”

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One lawyer who defended members before OCE alleges that the body requested interviews with targets just before its initial deadline, so investigators could automatically get an extension. Congressional Black Caucus members allege racial bias by the OCE. Members were sometimes brought in for questioning without being informed what their supposed infraction was. Yet nobody had the power to check these apparent abuses.

Congress has given up far too many of its powers in recent decades. Lawmakers have, for example, relinquished their vital right to declare war. Presidents have arrogated more and more power to themselves creating an imperial executive. Lawmakers, disinclined to deal with electorally dangerous issues such as abortion and gay marriage, have also gladly let those decisions devolve to the judicial branch. In the process, Congress has made itself weak and contemptible. It should reassert its traditional rights, including the right to police its own members. Lawmakers should do the job prescribed by the Constitution, hold themselves accountable and let voters decide whether they have done that well enough to deserve re-election.

There are plenty of reforms needed, such as swift disclosure of campaign contributions, just as online banking allows customers to see almost instantly a check deposited or withdrawal made. But such reforms, and many others, should be part of a properly thought out and publicly debated package. That would go a long way to improving the public’s opinion of its elected representatives. Such reforms should not themselves be ill-gotten under the cover of darkness.

Watchdogs fret House ethics office may yet be defanged

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“I’m sure there will be bipartisan support for weakening it.”

01/04/17 12:01 AM

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