The 109th Congress's Rules Package
THE 109TH CONGRESS'S RULES PACKAGE -- (House of Representatives - March 01, 2005)
The SPEAKER pro tempore (Mr. Dent). Under the Speaker's announced policy of January 4, 2005, the gentleman from West Virginia (Mr. Mollohan) is recognized for 20 minutes as the designee of the minority leader.
Mr. MOLLOHAN. Mr. Speaker, the 109th Congress's rules package, which was adopted this past January on a straight party-line vote, included provisions that made major unfortunate changes in the rules governing consideration of ethics complaints by the Committee on Standards of Official Conduct. I am today introducing a resolution that would amend or repeal those provisions.
There cannot be a credible ethics process in the House of Representatives unless the Committee on Standards of Official Conduct is able to consider complaints against Members and staff in a thorough, efficient, and nonpartisan manner. I am concerned that those provisions of the rules package, if allowed to stand, will seriously undermine the committee's ability to perform this critical responsibility.
The rules package made essentially three changes in the rules governing ethics complaints. The first change is the Automatic Dismissal Rule, which requires the committee to consider an act on any complaint within a period as short as 45 days or else the complaint will be automatically dismissed.
The second is a set of changes that applies where the committee, or an investigative subcommittee, decides to conclude a matter by issuing a letter, notification, or a report that refers to the conduct of a particular Member. These changes provide a number of so-called "due process" rights to such a Member, one of which is the right to demand that the committee establish an adjudicatory subcommittee to conduct an immediate trial on the matter.
The third change concerns the matter of a single attorney representing more than one respondent or witness in a case before the committee. Under this change, the committee is prohibited from requiring that a respondent or witness retain an attorney who does not represent someone else in the case.
Mr. Speaker, turning first to the Automatic Dismissal Rule, the Automatic Dismissal Rule constitutes a radical change in the rules governing the Committee on Standards of Official Conduct's consideration of complaints. From the time the committee came into existence until the adoption of this rule, there was only one way that a complaint filed with the Committee on Standards of Official Conduct could be dismissed, and that is by a majority vote of the committee. Because under the prior rules a complaint could be disposed of only by a committee vote, committee members were required to analyze the claims made in a complaint, to collect and consider additional information on the conduct in issue, and to discuss complaints among themselves in an effort to reach a resolution.
With the enactment of the Automatic Dismissal Rule, the need for this study, fact gathering, and discussion within the committee will be significantly reduced, if not entirely eliminated, in any instance in which five committee members are initially inclined to vote to dismiss the complaint. What incentive would those members have to give genuine consideration to the complaint? Under the new rule, they need do nothing more than sit on their hands and the complaint will disappear.
Of course, this rule change will have its greatest impact on the controversial high-profile complaints that come before the committee, but it is in the handling of complaints of that kind that the committee's credibility is most at stake. In short, while the long-term interests of the House require that committee consideration of all complaints in a reasoned, nonpartisan manner be made, the effect of the Automatic Dismissal Rule will be instead to promote partisanship and deadlock within the committee.
Why was the Automatic Dismissal Rule included in the rules package? The sole rationale that was offered for the Automatic Dismissal Rule was that it would "restore the presumption of innocence." Yet how does the Automatic Dismissal Rule restore the presumption of innocence? If a complaint against a Member is dismissed automatically because of committee inaction over a period as short as 45 days, is that Member in any position to claim vindication or that his conduct has been cleared by the committee?
The far more likely effect of a dismissal in those circumstances is that there would continue to be a cloud over that Member. So this rules change, in fact, does no favor for any Member who is the subject of a complaint. And no matter what the impact of the particular Member involved, any automatic dismissal of a valid complaint would do incalculable harm to the image and reputation of the House of Representatives as an institution.
It is also very pertinent to note that about 7 years ago when the report of the House bipartisan task force on ethics reform was before the House, Members had a meaningful opportunity to consider an automatic dismissal rule and they rejected such a proposal on a strong bipartisan vote. At that time the proponents of the rule argued that it would be unfair to a Member to have a complaint pending indefinitely before a deadlocked committee and that the proposed rule was akin to a judge declaring a mistrial when a jury was deadlocked. The fallacy of that argument was exposed when it was pointed out that a judge, in sending a case to the jury, never gives a set number of days for deliberation before a mistrial will be declared because to do that may guarantee that the jury will be deadlocked.
It is also noteworthy that the Automatic Dismissal Rule that was considered and rejected in 1997 gave the committee a far longer period of time to attempt to act on the complaint. That proposal was key to a committee vote on an unsuccessful motion to refer a complaint to an investigative committee, and it provided for automatic dismissal only if the committee failed to dispose of the complaint within 180 days after that vote.
The sheer unreasonableness of the Automatic Dismissal Rule that was enacted in the rules package for this Congress in January is shown in that the amount of time allowed for committee consideration of a complaint is as short as 45 days and cannot exceed 90 days. Because under committee rules a Member is allowed 30 days to file an answer to a complaint, that means the committee may have as few as 15 days to consider a complaint and answer, as well as whatever other facts it is able to gather in that brief period of time, before the complaint is automatically dismissed.
This Automatic Dismissal Rule must be repealed, Mr. Speaker, and it would be repealed upon approval of the resolution that I am offering.
Regarding the provisions of the rules package that provide certain so-called "due process" rights to Members, the resolution that I am proposing does not repeal those provisions in their entirety, but it does make a significant change in them. Where the committee or an investigative subcommittee proposes to issue a letter or other document that includes comments that are critical of a Member's conduct, it is reasonable to provide that Member with certain rights, such as prior notice and a meaningful opportunity to respond.
But the so-called "due process" provision of the rules package goes well beyond this, for they also provide a Member with the right to demand that the committee create an adjudicatory subcommittee to conduct an immediate trial on the conduct in question.
As a practical matter, Mr. Speaker, the effect of granting this right to Members is that the committee no longer has the ability to resolve a complaint by means of a letter that is issued in lieu of undertaking a formal investigation. In other words, under the due process provisions as now in effect, the committee, as a practical matter, now has only two options regarding each of the allegations made in a complaint: send the matter to an investigative subcommittee for a formal investigation or dismiss it.
Why is this so? It is important to understand that the committee would propose to resolve a complaint by the issuance of a letter of the kind referenced here only where it determines that a formal investigation of the matter is not warranted. While these letters are based on and reflect the information available to the committee on the conduct alleged in the complaint, the fact is that as of the time that the committee would propose to issue such a letter, not a single subpoena in the matter would have been issued and not a single witness would have been deposed. Yet these due process provisions confer upon the respondent Member the right to demand an immediate trial regarding that matter, a trial that would take place with no formal investigation ever having been conducted.
No committee that is at all serious about conducting its business would allow itself to be put in that position. The other due process provisions that confer this same right with regard to certain notifications issued by the committee and certain reports issued by investigative subcommittees suffer the same flaw.
The resolution I am proposing corrects this flaw by deleting the Member's right to demand an immediate trial and providing instead that the Member has the right to demand the establishment of an investigatory subcommittee to conduct a formal investigation in the matter in question. Possibly that investigation would conclude that the Member did not violate any law, rule or standard.
But if instead the subcommittee determined that there was substantial reason to believe that a violation had occurred, then there would be a trial before an adjudicatory subcommittee. Under the resolution I am proposing, a Member would also continue to have the rights to prior notice and an opportunity to respond to a letter, notification or report that references that Member's conduct.
Finally, Mr. Speaker, the third change in the rules that was made by the 109th Congress rules package concerns the matter of a single attorney representing more than one respondent or witness in a case before the committee. The rules package added provisions to the rules labeled "right to counsel provisions" that absolutely prohibit the Committee on Standards of Official Conduct from requiring a respondent or witness retain an attorney who does not represent anyone else in the case. My resolution would repeal those provisions.
The committee has had no rule that prohibits a single attorney from representing more than one respondent in a case and neither the committee nor any subcommittee has ever prohibited a party or witness from retaining an attorney who represents someone else in the case. But two separate investigative subcommittees, including the subcommittee that investigated House voting on the Medicare legislation in 2003, specifically raised the concern that multiple representation may impair the fact-finding process and recommended that the committee adopt a rule or policy that addresses this concern.
The reasons for these subcommittees' concern is very clear: Representation of multiple respondents or witnesses by a single attorney potentially seriously undermines any effort by an investigative subcommittee to sequester witnesses and thereby to obtain their full and candid testimony. In fact, in the other case in which the investigative subcommittee raised this concern, the Member who was under investigation had arranged for his own attorney to represent nearly a dozen of the witnesses who had been called before the investigative subcommittee.
We see the problem clearly. Yet the right to counsel provision of the rules package entirely disregards the experience of and the recommendations made by these investigative subcommittees, and they absolutely preclude the committee from taking any action to address this problem. Almost certainly those provisions of the rules package will serve to encourage respondents and witnesses to employ the same counsel in cases before the committee and will thereby make the problem identified by the investigative subcommittee far worse.
In short, Mr. Speaker, no matter what the intent of any of these provisions of the rules package might have been, their effect will be at a minimum to seriously undermine the ability of the Committee on Standards of Official Conduct to consider and act on complaints in a credible way. In particular, the practical effect of the so-called due process provisions now in effect is to substantially eliminate the committee's ability to resolve a complaint short of a formal investigation and thus to force the committee to decide between either dismissing a complaint entirely or sending it to a formal investigation.
Under the new automatic dismissal rule, where there are five committee members whose initial inclination is to vote to dismiss the complaint, the likely result will be an automatic dismissal in a month and a half. Even if a complaint does make it to an investigative subcommittee, the right-to-counsel provisions will make it far more likely that the respondent and witnesses will be represented by the same counsel, and thus will have an opportunity to undermine the subcommittee's work by coordinating their testimony.
Approval of the resolution I am introducing will undo the harm done by these provisions of the rules package. Approval of this resolution will also provide a clear and desperately needed signal to our constituents that the House is firmly committed to protecting its reputation and integrity and that the House does intend to have a fair and effective process for considering and acting upon credible allegations of wrongdoing.
Approval of this resolution, Mr. Speaker, is also necessary for one other reason, and that is to affirm the long-standing principle in the House that major changes in the ethics rules and procedures must be made on a bipartisan basis. When the House revisited its ethics rules and procedures in both 1989 and 1997, the work was done through bipartisan task forces that gave thoughtful consideration to proposals from all Members. In contrast, Mr. Speaker, the changes made in the rules package adopted in January were made on a party line vote, with no input whatsoever from anyone in the minority.
Approval of this resolution will be a critical step in restoring the bipartisanship that is essential if there is to be a meaningful ethics process in the House.
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