When member of Congress go rogue, the Office of Congressional Ethics (OCE) is supposed to step in. It’s an independent and non-partisan panel established by the House in 2009, tasked with investigating misconduct and making referrals to the House Ethics Committee. When lawmakers cooperate, that is. And increasingly, they’re not.
In 2021, 14 House lawmakers were referred to the OCE for investigation. Six of those 14 absolutely refused to cooperate with the investigation, a rate of 43%, which has never happened before. In its first year, the 111th session of Congress in 2009-10, it carried out 68 investigations and just three members refused to cooperate. This fall, OCE was investigating improper financial conduct in four separate cases, and two of the members—both Republicans—flatly refused to meet with the investigators or provide any requested documents. That’s how it works these days, apparently.
The two Republicans are Rep. Mike Kelly of Pennsylvania and Rep. Jim Hagedorn of Minnesota. Kelly is being investigated for stock purchases by his wife that investigators say are tied to his work in Congress. Hagedorn is accused of steering federal contracts to companies his staffers’ relatives own. Kelly’s office didn’t respond to The New York Times’ request for comment, but Hagedorn’s attorney said they were bypassing this non-partisan independent committee and working directly with the House Ethics Committee, where House colleagues are in control.
Omar Ashmawy, the staff director of the OCE, told the Times that they were seeing increased resistance by members to cooperate, but that “It has never prevented us from being able to gather the facts and determine what happened and whether or not the subject was culpable.” He also said that he thought the higher rate of resistance is because the OCE is taking on fewer, but more serious, cases. In the less serious cases, lawmakers have been anxious to clear up any problems. Not so with the real wrong-doing that’s been alleged in the cases before them now—cases that could have real consequences.
It generally takes a federal conviction for members to discipline their own—the last time one was expelled was 2002, when Democrat James Traficant was convicted in 10 felony accounts for financial crimes. Lawmakers just aren’t likely to go after one another and are more likely to work with colleagues in the Ethics Committee than answer to independent investigators.
Outside observers see a breakdown of the norms and rules which has governed Congress. “There’s a trend towards not taking ethics rules seriously and also more resistance to cooperating in ethics investigations or, frankly, even acknowledging the legitimacy or authority of ethics investigation,” said Bryson B. Morgan, a lawyer at the firm Caplin & Drysdale in Washington, and a former investigative counsel for the OCE. “I think there’s been a bit of a backsliding on ethics.”
Witness Donald Trump. “What people used to think was a career-ending mistake has been proven to not be a career-ending mistake,” Morgan told the Times. “Many people have noticed a shift in ethical norms. It used to be the case that when a member violated the ethics rules, if not a fine, there would be a fairly stiff political price to pay. I worry that has gone away.”
It’s not just Trump, though. Even House Speaker Nancy Pelosi has been dismissive of the legal and ethical rules set for members by the STOCK Act. It’s the most regularly ignored rule by members, who often fail to comply with the requirement that stock trades are reported within 45 days. There have been 52 violations of it just this year. Pelosi more or less blew off questions about that level of non-compliance when reporters asked. “We’re a free-market economy,” she said this fall. “They should be able to participate in that.”
Kedric Payne, the senior director for ethics at the Campaign Legal Center and a former deputy chief counsel for the OCE, disagrees. “Noncompliance with the STOCK Act is the most blatant violation by multiple members of Congress that I’ve seen in recent history,” he told the Times. “You need stronger rules that would restrict stock trades that appear to be conflicts of interest—for example, trading stock in an industry that is within the jurisdiction of your committee.” The STOCK Act is lenient, with fines starting at just $200.
Yes, the rules should be tougher and there should be more serious consequences, particularly when you’ve got the likes of Lauren Boebert, Marjorie Taylor Green, and Jim Jordan running around the place. It’s that whole slippery slope idea: you get used to members using their insider knowledge to make some money on the stock market and turn a blind eye to it, you end up with members letting violent mobs know where to gain access to attack the Capitol and the people in it.