As published in Law360 on October 17, 2019.

Sen. Elizabeth Warren, D. Mass., has previewed anti-corruption legislation she would seek to enact if elected president. Her bill would strengthen congressional ethics enforcement by expanding and empowering the Office of Congressional Ethics, the same office that initially launched the investigation into Rep. Chris Collins, R. N.Y., who pleaded guilty earlier this month to federal securities crimes.

Sen. Warren’s legislation doubles down on a novel concept — asking those making our nation’s laws to authorize outsiders to investigate and hold them accountable. Her proposal seeks to expand on existing features of the OCE and add new features that would significantly alter the landscape.1

As someone who spent several years as a senior investigator for the OCE, here are a few of my thoughts about Sen. Warren’s legislative proposal and its impact on Congress, on anyone who regularly interacts with Congress and on the public at large.

Background on the OCE 

The OCE is the first ever self-imposed, independent, nonpartisan body overseeing the ethics of the U.S. House of Representatives. It was established in 2008 by a resolution of the House and has been reauthorized at the beginning of each Congress since. The OCE reviews allegations of misconduct against members, officers and staff of the House and, when it discovers sufficient evidence of wrongdoing, it refers the investigation to the House Ethics Committee.

Currently, the OCE’s authority is limited. It does not have jurisdiction over anyone outside of the House, and it cannot compel cooperation. Where the OCE finds substantial evidence of wrongdoing, it can generate a report that will become public. The report details the findings of fact made by the office and can include copies of documents submitted by witnesses or their statements made during voluntary OCE interviews.

Notwithstanding the OCE’s limited authority, the office’s productive record is proof of its influence. The OCE has initiated hundreds of reviews. While most end without a public report, more than 80 reviews have ended with a public accounting. These reports have had a significant impact on the House. Members have resigned or not sought reelection, the House has improved its rules, and the public has gained valuable insight.

Some members, including most recently former Rep. Collins, have faced criminal charges following an OCE review. But, perhaps most importantly, the OCE requires accountability of members and staff as well as of those who interact with them. Sen. Warren’s proposal would greatly expand on the OCE’s success, giving the office more tools and authority to enforce rules over expanded jurisdiction and bring even greater levels of accountability to Congress and to those who influence it.

Referral Authority

Sen. Warren proposes that the OCE refer criminal and civil violations to the U.S. Department of Justice and other relevant law enforcement entities. The OCE has, on several prior occasions, voluntarily sent evidence of criminal violations to the DOJ. Those referrals, and the evidence included in the OCE’s public reports, have formed the basis of criminal prosecutions.

Any witness cooperating with the OCE should consider whether the information provided might be used to support a criminal prosecution. This includes making false statements to the office (witnesses have faced criminal charges for lying to the OCE). If anything, Senator Warren’s proposal suggests expanding on the OCE’s referral practice, by encouraging the office to send information to more federal and state authorities.

Jurisdiction over the Senate

Senator Warren’s legislation would give the OCE jurisdiction over the entire legislative branch, including the U.S. Senate. Currently the OCE’s jurisdiction is limited to one chamber — the House. While historically the Senate has been seen as more likely to police itself and to enforce its own rules, that perception has largely shifted over time given the OCE’s willingness to confront and aggressively investigate allegations in the House.

Expanding the OCE’s jurisdiction would likely provide an immediate deterrent to Senators and to their staff — namely, the threat of an OCE review and the possibility of a public report. Those who interact with the Senate and are unfamiliar with the OCE should be aware of the OCE’s record in the House and the implications for witnesses. The OCE is able to initiate reviews based on a relatively low evidentiary threshold — a reasonable basis to believe a violation of any law or standard of conduct applicable to Congress.

This means any interaction with a senator that might appear to violate the rules could lead to an OCE review. Expansion to the Senate would mean more inquiries, more people subject to those reviews and more public information about potential misconduct by Senators and their staff. In short, the result would be more accountability, transparency and overall public visibility.

Subpoena Power 

Sen. Warren would provide the OCE with subpoena authority. Currently the office relies on voluntary cooperation in its mission to unearth evidence of wrongdoing. To encourage voluntary cooperation, the office relies on three tools:

  • First, the OCE can take a negative inference from a subject’s lack of cooperation with the office, allowing the OCE to conclude that if the subject had cooperated the evidence that the subject would have provided would support the allegation. This negative inference, by itself, is not enough to make a referral that will become public. But the lack of cooperation can also trigger other OCE rules. For instance, if a subject does not cooperate with an investigation, the OCE need only find probable cause to believe a violation occurred. This means an OCE investigation can be made public under a lower evidentiary standard (ordinarily the OCE must find a substantial reason to believe the allegations occurred in order to cause a report to become public).
  • Second, the OCE can report a witness as noncooperative in a public report and recommend that the House issue a subpoena to compel the witness’s cooperation.
  • Third, the OCE may receive the information from other sources, meaning the witness who does not cooperate risks the OCE nonetheless obtains the same evidence elsewhere, and the witness is incriminated and depicted publicly as uncooperative and potentially even obstructive.

These tools are imperfect at best. Today, witnesses are free to balance the considerations and decide not to cooperate. If some do not cooperate, the findings of the office are left with an unsatisfying “asterisk” that the office was not able to gather complete information. Providing the OCE with subpoena authority will result in more significant repercussions for noncooperation and will give the OCE’s findings more finality and solemnity that it presently lacks.

Especially if the OCE is encouraged to increase its referral practice, witnesses should be ready to treat any such subpoenas as carefully as they would a subpoena from the DOJ with the increased likelihood that information provided will become public. Arguably, presently, subjects and witnesses do not share the most incriminating information with the OCE because they would rather risk the repercussions of not cooperating than publicize their misconduct. Under Sen. Warren’s proposal, the OCE, and therefore the public, would be more likely to see this information.

Authority to Recommend

Sen. Warren proposes giving the OCE authority to recommend disciplinary and corrective action. The OCE is presently restricted to making findings of fact and it cannot make conclusions about whether a violation in fact occurred or recommend discipline or corrective actions. These restrictions limit the OCE’s ability to prompt actual discipline or changes to congressional rules or conduct. Sen. Warren’s proposal would allow the OCE to initiate these discussions, which would likely lead to two results:

  • First, the OCE reports would be able to provide some differentiation based on the seriousness of the conduct. Where a subject was unaware of the rule or the violation was inadvertent, the OCE might recommend little or no discipline. However, where the conduct was more egregious, the OCE might recommend more serious discipline. The end result would likely offer more deterrence to subjects who flaunt the rules.
  • Second, the OCE would be able to use its knowledge from conducting hundreds of investigations to suggest improvements for the subjects, the chambers, and the legislative body as a whole. The OCE might, for example, recommend additional training on particular subjects or revisions to particular rules or policies.

These recommendations would add more depth and substance to the OCE’s findings. The public would gain valuable insight into why the OCE believes the violation occurred in the first place. They might also provide additional opportunities for creative lawyering. Presently, suggestions for improving congressional standards or conduct to better enable compliance are lost when raised to the OCE during a review. But, if the OCE agrees to make such a recommendation, it would suggest those involved were not deliberately contravening the rules.

Increasing Legislative Transparency

Sen. Warren recommends measures to make Congress more transparent, including by requiring lobbyists to disclose when they are lobbying a specific congressional office. One of the more controversial aspects of the OCE was its use of publicly available information to identify potential ethics violations.

For example, the OCE conducted several reviews into whether or not members created an appearance of impropriety by hosting fundraisers around the House’s adoption of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The office initiated these reviews by correlating publicly available information on fundraising and legislative activities. Sen. Warren’s proposal would likely give the OCE another data set to audit for potential wrongdoing and one that would likely involve several lobbyists in OCE reviews.

Recommendations for Senator Warren

Sen. Warren’s proposals would augment the OCE and lead to greater accountability and transparency in Congress. But her proposal misses a key issue — it does not delineate responsibilities to investigate between the OCE and the House and Senate Ethics Committees.

Currently, when the OCE initiates a review, the House Ethics Committee immediately opens its own review dealing with the same conduct. This means that subjects and witnesses to an OCE review will automatically be subjected to a House Ethics Committee investigation and will incur additional expenses and risks of concurrent inquiries.

If Sen. Warren does not intend to move the investigation function entirely to the OCE (leaving the adjudicative function with the House and Senate Ethics Committees), she should articulate each office’s role in order to avoid duplicative efforts. Her proposal asks legislators to relinquish power to and trust a group of outsiders to police them. If it is not clear what is being given to that outside group, or if legislators do the same job, the results are likely to be counterproductive.