House Republicans voted to rejigger (or as the headlines put it, “gut“) their independent ethics office; then, after heavy criticism from Democrats, Trump, and voters, said, “Nah, forget it.” What were they thinking? To find out, I analyzed a statement from Virginia Representative Bob Goodlatte, point man for the change. He’s mastered the Orwellian skill of calling things the opposite of what they are.
Let’s take a look at Goodlatte’s words and what they actually mean. I’ve highlighted cases where the words are at odds with the reality. In the case of passives (which I highlight in bold italic), you can have fun by adding the usual test for passives: see if you can add “by zombies” after the verb.
Rules amendment strengthens mission of OCE
The word ethics carries a heavy weight in the halls of Congress, and with good cause. The men and women elected to represent the American people should be held to the highest standards. That’s something with which I wholeheartedly agree. Nearly a decade ago several Members of Congress were involved in major ethics scandals, some of which resulted in those Members serving prison time. While the legal system dealt with their actions in an appropriate manner, the House looked inward at its own practices to ensure that ethical challenges were being handled appropriately, in line with the Constitution, and in a manner that reflected the best intentions of our elected representatives.
Analysis: Starting in the title with the word “strengthens” to describe making something weaker, Goodlatte puts us on notice to be skeptical about everything he says. The passive voice phrase “should be held to the highest standards” is telling, because the whole thrust of this statement about who should hold people in Congress to those standards — exactly what’s missing in this passive sentence. The last sentence explains that those who created the ethics panel had good intentions, which is the nice thing to do before you rip apart what they created.
Translation: Rules Amendment weakens mission of OCE. We need to investigate ourselves, but that’s become uncomfortable so we’re changing how we do it.
Out of this review came the Office of Congressional Ethics, or OCE. This nonpartisan, independent office was founded partially to add an additional layer of review over Members and staff of the House of Representatives, but primarily to serve as a receiving forum for complaints from members of the public. As a former member of the House Committee on Ethics, and the acting Chairman of the Committee for one investigation, I know how important a robust investigative body can be to uphold the high standards expected of Congress by the American public.
Analysis: More misdirection. By using the passive “was founded” I can avoid saying who founded it — Democrats.
Translation: I need praise the OCE before I explain how we’re undoing it.
Since the OCE was first created, it has gone through some growing pains, and the House has now had nearly a decade of results to make necessary improvements that will strengthen the OCE and provide important constitutional protections for those being investigated. As the House has done since the initial resolution creating the OCE, the Rules package adopted on the opening day of the 115th Congress includes important changes to OCE operations.
An amendment I offered builds upon and strengthens the existing OCE by maintaining its primary area of focus – accepting and reviewing complaints from the public – while providing additional due process rights for individuals under investigation, as well as witnesses called to testify. It also changes the name of the OCE to the Office of Congressional Complaint Review (OCCR) to avoid confusion with the Committee on Ethics and more accurately reflect its mission.
Analysis: “Growing pains” reflects that when an ethics council works, it’s painful for those being investigated. And while you can add due process rights, that makes things easier for the accused and harder for the investigator — calling that “strengthening” is an Orwellian word choice. So is removing the word “ethics” and replacing it with “Complaint Review” in the name of a panel that investigates ethical violations.
Translation: The committee was a pain in the ass for members of Congress accused of ethical violations. So we’re making it easier for them. Just in case there is any doubt about the presumption of innocence, we’ll call any accusations “complaints.”
Feedback from Members and staff having gone through review by the OCE has been that those under investigation need increased protection of their due process rights, greater access to basic evidentiary standards, and a process that does not discriminate against them for invoking those rights. The amendment seeks to strengthen each of these needs while maintaining the basic core of OCE’s functions. To be very clear, while the name may change, the office maintains its independence and mission to review complaints against Members and staff from the public.
Analysis: This is straightforward — the changes are supposed to improve due process. If Goodlatte were honest, he would have made this the lead. But this is politics. And as you’ll see later on, the propsal does the opposite of “maintain independence.”
Translation: We’re adding due process protections to make it easier for Members accused of wrongdoing.
For decades the House Ethics Committee has worked in a bipartisan manner to investigate alleged abuses by Members and staff. Their track record of confidentiality, of operating in a “hermetically sealed chamber,” is the gold standard for an investigative body. The OCCR should do the same to protect the accused’s rights and preserve the integrity of the investigation. Due to the sensitive and confidential nature of the investigations, the amendment provides strong protections against any disclosures to the public or other government entities, and requires that any matter that may involve a violation of criminal law must be referred to the Committee on Ethics for potential referral to law enforcement agencies after an affirmative vote by the Members. These provisions taken together ensure the rights of the accused are protected throughout the investigation and not subject to litigation by the media, as well as ensuring that any criminal matters are properly referred to law enforcement agencies by Members of Congress, not the unelected staff of OCCR.
Analysis: In case you missed it, the OCCR (formerly known as the Office of Congressional Ethics) operates independently of the congressional Committee on Ethics, which is made up of Members of Congress. Goodlatte sees this as the problem. To solve it, he’s made it illegal for the OCCR to have a spokesperson, and given the committee veto power over any accusation.
Translation: The OCCR has been an annoyance, so we’re stripping their ability to speak publicly and making sure we can prevent them from initiating criminal prosecutions.
An important principle of effective governance is that all parts of the federal government, whether found in the legislative, executive, or judicial branch, should be subject to proper oversight. That is why my amendment ensures that OCCR will be subject to oversight by the Committee on Ethics. This provision does not mean that the Committee on Ethics will be able to dictate outcomes or impede a properly conducted investigation, but rather that their budget, their rules and procedures, and their impact on House operations will be reviewed in the context of a fellow investigative body.
Analysis: Whoever controls the budget and procedures controls the outcomes. So the meaning of this paragraph is the opposite of what it says. It would be more honest if Goodlatte removed the “not” from “does not mean.”
Translation: We’re taking charge of this committee and will keep it on a short leash.
Another of the basic tenets of American law is that the accused have the right to confront their accuser in a court of law. Today the OCE is able to accept anonymous complaints, meaning literally anyone from anywhere in the world can send something through a website and potentially disparage the reputation of a Member without a basis in fact. Responding to an anonymous accusation drags good people’s names through the mud, costs the accused tens of thousands of dollars, and costs people their jobs. And when the anonymous complaint is found to be frivolous none of that is returned. This amendment requires OCCR to create rules that disallow anonymous complaints, something that will prevent frivolous complaints and allow the OCCR to focus their time and energy on legitimate complaints.
Analysis: Anonymous whistleblowers are problematic. Why not put limits on the complaints rather than those who report them? If there is evidence, why does it matter that the complaint is anonymous? Also: this is not a court of law. We hold our Representatives to a higher standard than criminal defendants.
Translation: By making sure people who complain cannot be anonymous, we’ll make sure lots of these ethics accusations go away.
The bottom line is that if Congress wants the American public to have a venue to make complaints against Members of the House, an important goal that I share, then it needs to work, it needs to protect the rights of the accused, and it needs to remain confidential throughout the investigative process. The amendment in the House Rules package strengthens the mission of the OCCR, restores constitutional due process rights to the accused, and ensures that the Office of Congressional Complaint Review remains a strong and independent review board throughout the 115th Congress.
Analysis: The first sentence should have been the lead. The second sentence is pure Orwellian doublespeak: it weakens rather than strengthens and ensure that the panel is under the leash of Congress, rather than being independent.
Translation: Let’s make this annoying ethics board toothless so we can operate without interference.
A shout-out to media on this one
This episode was a great example of the essential work of real journalists. I’ve read the original set of rules changes: it’s obscure legalese. But the White House reporters dug into it and gave us these great headlines:
With No Warning, House Republicans Vote to Gut Independent Ethics Office. (New York Times)
House GOP Votes to Put Independent Ethics Board Under Lawmakers’ Control (Wall Street Journal)
House Republicans vote to rein in independent ethics office (Washington Post)
This coverage led to voter backlash and a pair of tweets from Donald Trump — and to the House Republicans capitulating.
When you’ve got the right people to point it out, bullshit doesn’t always win.