With the Office of Congressional Ethics (OCE) prepping to investigate Rep. Michele Bachmann (R-MN) in one of the more publicized ethics cases in recent years, some observers are wondering whether the office in question is really equipped to handle the investigation. The reason? The Bachmann case has generated an unusually high volume of leaks prior to the conclusion of the OCE's investigation, and the question has been raised as to whether the organization's transparency allows a high degree of harm to occur to members' reputations simply because they're being investigated.
One expert, Daniel Schuman of the Sunlight Foundation, brushes these complaints off. "They're afraid that if someone's under investigation, their names get smeared," Schuman told TheBLaze. "Of course, any time the police make an arrest, their names get smeared, so there are analogies. And OCE is very careful to say this isn't a declaration of guilt, this is just an investigation being done." However, others aren't so blaze. In fact, to many, such as Jeffrey Lord of the American Spectator, the whole business looks monstrously unfair:
What does all this mumbo jumbo actually mean for Congresswoman Bachmann?
It means there is a move afoot to smear Michele Bachmann in the media — with just the right touch of quasi-legal patina — so that her career is finished.[...]
We learn that the “OCE does not comment on ongoing investigations,” that a “senior attorney” for the OCE said he couldn’t confirm or deny the story, and an OCE board member, himself a former Congressman, said he “could not comment.”
The obvious question. If those connected to OCE are obviously not allowed to discuss the investigation with anyone — how does a story, an “exclusive” — make it to the Daily Beast in the first place?
Obviously, someone who has knowledge of the OCE and with an axe to grind against Michele Bachmann leaked the story. Or Daily Beast columnist John Avlon would not have his “exclusive” in the first place.
Lord's argument - that leaks of the kind that have been forthcoming in the Bachmann case render the OCE effectively a kangaroo court, designed to smear conservatives through media anonymity - is just one of many criticisms of the OCE. This February, a group of attorneys drafted a letter claiming that the organization frequently releases reports riddled with factual errors, that it doesn't allow those it is investigating to defend themselves adequately, and ignores certain forms of evidence. At the same time, watchdog groups have pushed back, claiming the issues with the OCE spring from its lack of power and calling for its ability to investigate to be increased.
So who's right, and what is the problem? Is it partisanship? Even if not, is the OCE capable of doing its job fairly? Is it actually an organization whose reports are riddled with factual errors, and which operates from an unfair presumption of guilt without allowing those who it investigates to defend themselves? Does the OCE constantly leak details before its mission is complete, thus handicapping its targets' political careers unfairly, with no effort to try and stop such a practice? Or is it a strapped office trying to enforce rules without adequate support, and thus necessarily handicapped, and are the complaints against it simply "sour grapes," as Schuman put it?
TheBlaze looked into these questions and found some answers that may interest you.
I. Is the OCE partisan?
While the ethics investigation against Rep. Bachmann may well spring from politically motivated actors trying to sabotage her career, when it comes to the record of the OCE, there is little to no evidence to suggest that the office targets people on a partisan basis. In fact, to the extent that such a bias has been argued about in the past, the OCE's main detractors have been die-hard liberals.
To begin with, since January of 2012, the OCE referred eight cases to the House ethics committee for further investigation. Of those eight cases, three were against Republicans and five were against Democrats. In 2011, the division slanted against a few more Republicans, with nine cases being investigated, of which five involved Republicans and four involved Democrats. On the face of it, these sorts of small differences in the number of cases referred by partisan ID suggest that the OCE does not discriminate by party.
Moreover, prior to the Bachmann case, the OCE's staunchest critics were a group about as far from Bachmann as it's possible to get, politically -- namely, the Congressional Black Caucus (CBC). In June of 2010, Politico featured a story pointing out that while a bipartisan group of legislators seemed to dislike the office, the CBC was spearheading the effort:
Members of the Congressional Black Caucus have led the charge, airing complaints about the aggressive, independent panel in a private session with House Speaker Nancy Pelosi last month, and they’ve drafted a resolution that, if approved, would severely curtail the panel’s power.
But there’s hot competition between the CBC and the official House ethics committee over who has less regard for the Office of Congressional Ethics, also known as the OCE. And the rest of the House doesn’t appear to be far behind in its disdain. Privately, Democratic and Republican lawmakers, and even some congressional leaders, acknowledge that there’s a strong sentiment to change rules that empower the office to publicize investigations and wreak havoc on lawmakers’ political lives.
Setting aside the merits of the CBC's complaints for the moment, any group that manages to irritate both the CBC and Michele Bachmann would appear to have no overt partisan agenda. There may be other issues, of course, but this does not seem to be one of them.
II. Is the OCE unfair in its investigations?
In an op ed for Politico from December of last year, William McGinley of Patton Boggs, who represents Rep. Bachmann in her ethics case, complained about several issues with the OCE's approach to investigations:
Now that the Office of Congressional Ethics has been in existence for a couple of sessions of Congress, a sufficient record has been created demonstrating that changes are needed to increase the due process rights of subjects. Most people are surprised to learn that a subject of an OCE review is left in the dark during the entire OCE review process.[...]
The OCE rules should be changed to include a definition of “exculpatory evidence” that includes all evidence favorable to the subject, including information and evidence that tends to disprove the allegations against the subject or that tends to impeach the credibility of the accuser or a witness against the subject (such as inconsistent witness statements).[...]
The often irreparable reputational damage done to a subject by the mandatory release of a damaging report that may contain clear errors or that reaches an unjust conclusion requires the House of Representatives to take a close look at the OCE rules and reform the process.
TheBlaze reached out to McGinley for further comment, but did not receive a reply. However, as presented, his argument makes sense on one level - if a body is tasked with determining guilt, those representing the accused should be able to speak to that body directly.
On the other hand, according to Daniel Schuman of the Sunlight Foundation, that argument fails because its premise is flawed.
"OCE is not a tribunal. They're not the ones that are making the determination," Schuman told TheBlaze. "They're the ones seeing if there's enough evidence to determine whether an investigation is warranted. So they have a short period of time where they can investigate a matter and then refer it to the ethics committee for further investigation. It's not intended to be an adversarial system. Nevertheless, what you often see is members of Congress or their staff simply refuse to cooperate with OCE. They try to talk to people and people don't usually talk to them, and if they think there's enough information, they kick it over to the ethics committee."
By way of analogy, Schuman's argument suggests that allowing attorneys to address OCE hearings directly would be like allowing defense attorneys into police stations while investigations are still ongoing.
However, Schuman did acknowledge that there are problems with OCE's evidence, though his response to this problem was surprising.
"I haven't seen it happen, but it would not surprise me that they get facts wrong," Schuman said. "OCE doesn't have the power to compel testimony under the threat of perjury. Do they not have the full picture? Of course they don't. They only have a short period of time during the investigation. And they don't have the power to compel everyone to talk who needs to talk. But their goal is not to make a judgment on guilt. Their role is to see whether there's sufficient information to merit further investigation. The question isn't whether there's an error. There's a way to challenge an error before the ethics committee."