Republicans in Congress have an ethics problem

Republicans voted near-unanimously this week to weaken ethical oversight in Congress. It’s not the best look for the new House majority, but it doesn’t seem to care.

Representative George Santos of New York, newly sworn in despite lying about his background in order to get elected, called the new set of rules “fantastic.” All but one Republican (Tony Gonzales of Texas) voted for the rules, which include provisions that effectively neuter the independent, nonpartisan Office of Congressional Ethics.

Run by private citizens, the OCE is separate from the House Ethics Committee, to which the OCE makes recommendations. The OCE has a track record of investigating members from both parties over such issues as failure to disclose stock trading and misuse of campaign funds. If it finds cause, the OCE refers the matter to the House Ethics Committee for further review. That panel doesn’t have to pursue investigations of its colleagues, but the OCE’s reports are still made public.

“It’s the transparency mantra that sunlight is the greatest disinfectant,” says Leo Wise, the OCE’s first director, who is now a federal prosecutor.

Republicans have been trying to dismantle the OCE ever since it was established in 2008. (They failed in 2017 because former President Donald Trump realized it didn’t align with his “drain the swamp” campaign mantra.) This year, however, they were more strategic: The goal wasn’t elimination so much as impairment.

The new rules place eight-year term limits for its directors — which means that three of the four Democratic appointees are out (the board has eight members). The OCE also has to hire a new staff within 30 days, a near-impossible time frame. When Wise started at the watchdog, there were five investigative counsels. Now there’s just one.

It’s not that the new House Republican majority doesn’t want oversight — they just don’t want it for themselves. Among their many targets: COVID relief spending, Hunter Biden, and baseless claims that climate activists are colluding with China and Russia. They also formed a panel that will investigate the Trump investigators and any agency they view as “weaponizing government.”

The deeper issue is that Republicans are continuing to chip away at small-d democratic norms of accountability. It’s not surprising that they don’t want such scrutiny. But the question of what’s actually happening in the shadows transcends partisanship. And the closely divided House makes it all the more important to have an independent entity to investigate allegations of misconduct.

Before the OCE was established, the House Ethics Committee tended to bury everything to protect their colleagues, says Fred Wertheimer, founder and president of Democracy 21. OCE ended that — and sometimes acted as a catalyst for more lasting change.

Kedric Payne, OCE’s former deputy general counsel, says its 2012 investigation into insider trading by former Representative Spencer Bachus, then the Republican chair of the Financial Services Committee, built momentum for passing the Stop Trading On Congressional Knowledge Act, which cracked down on members and their families trading on market-moving information that would only be known to lawmakers.

Payne, who is now vice president at the Campaign Legal Center, points out that in the last Congress, the OCE released reports about several members’ noncompliance with the law. Violations ranged from failing to report transactions to questionable timing of stock purchases. The House Ethics Committee has decided to investigate some of these cases, but not all. All the reports, however, are online.

There’s no equivalent of the OCE in the Senate, and the difference between the two chambers is instructive. “In the Senate you have a violation and nothing happens,” Payne says.

He looked at a 10-year period from 2009 to 2020 and found that overall, the Senate Ethics Committee dismissed 52% of investigated complaints. Of the remaining ones, only 3% resulted in a finding of violation. Compare that to the OCE, which dismissed 56% of complaints but found violations in 41% of the remaining cases. And 43% of the investigations resulted in public reports, versus 5% in the Senate.

Now the House’s numbers are likely to be more like the Senate’s. “We’re back to the old system,” says Wertheimer: If members break the rules, they’ll probably get a free pass.

The ranking Republican on the House Ethics Committee last Congress was Representative Michael Guest of Mississippi, one of only 35 GOP members who initially voted for an independent Jan. 6 commission. He has not indicated whether he wants to remain in the top slot, though it is reasonable to think he will. The better question, as the party names its committee leadership, is whether Republicans want him there.