Why Did Congress Do It? Because They Can

It all happened within hours after the 115th Congress convened in January 2017. There was considerable anticipation that the first thing members of the House would do was introduce legislation to rid themselves and the country of the Affordable Care Act.  To everyone’s surprise, however, that was not the first item on the agenda.  The first item of business was to draw the public’s attention to the existence of a non-partisan ethics board that many of the 20 million people who had gotten insurance under Obamacare (and millions of others) did not even know existed-the Office of Congressional Ethics (OCE).

OCE is an independent board which is charged with investigating violations of the congressional ethics rules by members of Congress and their aides.  If it finds violations, it votes on whether or not to refer the matter to the House Ethics Committee so that that committee can conduct its own review. The OCE has no enforcement powers.  Duncan Hunter, a Member of Congress from Alpine, California, affords us an example of how the office works.

In April 2016, OCE was asked to review Mr. Duncan’s use of campaign funds for personal expenses, by the Citizens for Responsibility and Ethics in Washington D.C. OCE referred the results of its investigation to the House Ethics Committee on August 31, 2016 and further action is in the hands of that committee. According to Mr. Duncan’s Chief of Staff,  Mr. Duncan has reimbursed his campaign committee for more than $60,000 in expenditures that were made for such things as paying for private school tuitions, video games, travel to Hawaii and, most recently, $600 to fly a pet rabbit that was accompanying the family.  The House Ethics Committee has not yet issued its report.

On January 2, 2017, one of the first items of business that was addressed by the House Republican Conference Committee, was voting to effectively kill the OCE by amending the package of rules the party planned to adopt the following day.  In explaining the action, Representative Robert Goodlatte (R.Va.), said it would give lawmakers better protection from what some members see as overzealousness by the OCE.  The lawmakers were probably also thinking that the OCE was a bit superfluous since only seven members or former members of Congress were convicted of criminal activities during the Obama administration, six during the George W. Bush administration, ten under the Clinton administration, and four under the George H.W. Bush administration. The kinds of offenses of which Members were convicted included, inter alia, such things felony tax evasion, possession of cocaine, wire fraud, extortion, racketeering, destroying evidence, felony theft, and financial corruption.  It is entirely possible that if one were to pick a random group of 535 people (the same number as serve in Congress) and study them for an eight-year period, one would find a similar number convicted of criminal activities.  Or maybe not.

With what Republicans in Congress see as being so few criminal convictions of members of Congress during preceding years, it is easy to see why they would like to strip the OCE of some of its powers.  Nonetheless, before noon on the following day, members of the House responded to cooler heads, and a Trump tweet, and stripped the amendment from the rules that had been approved the night before.  That was not, however, quite the end of their efforts to protect House members.

An unnoticed rule change that passed  without public comment on the same day that the other amendment was abandoned, provides that:  “Records created, generated, or received by the congressional office of a Member … are exclusively the personal property of the individual Member … and such Member … has control over such records.” Thus, if a member is being investigated by the OCE or the Justice Department for activities such as, for example, public corruption or misuse of funds, and the investigating authority needs access to records that are in the sole possession of the person being investigated, the person being investigated can decline to turn them over.

Sheila Kumolo, executive director of the Center for Responsive Politics spoke to the Fiscal Times after the new rule was passed and asked: “Why on earth would Congress now create barriers to investigation and subpoenas of a member’s spending records? This only benefits the incumbent politicians who passed this rule and those who would flout it, not the system and certainly not the public.”  The answer is, of course, because they could. That’s one of the perks that come with being in the majority.

(The following is a bit of whimsical trivia that has nothing to do with Congressional rule making:

Actual Donald Trump tweet of January 7, 2017: “Having a good relationship with Russia is a good thing, not a bad thing.  Only ‘stupid people’, or ‘fools’, would think that it is bad.”

Fake news tweets from Joseph Stalin:

August 23, 1939, after signing the German-Soviet Non-Aggression Pact: “Having a good relationship with Adolph Hitler is a good thing.  Only ‘stupid people’, or ‘fools’ would think that it is bad.”

Joseph Stalin, June 21, 1941, following invasion of Russia by Germany: “Hitler is bad. So sad.”)

Christopher Brauchli can be e-mailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com