Different Standards For Me And Thee

by Jeff Elliott

A little-noticed clause in a huge appropriations bill would establish a "Misconduct Review Board" where members of Congress -- and supposedly, average citizens -- could make claims of abuse by federal prosecutors.

The provision is authored by a bipartisan team of Pennsylvania Reps: Joe McDade (R) and John Murtha (D). Both had been targets of investigations: McDade was probed on charges that he accepted bribes from defense contractors, and Murtha was a suspect in the FBI's 1980 ABSCAM sting operation. Both were eventually aquitted of wrongdoing.

Their legislation has two controversial parts. It would require federal prosecutors to follow local court rules, even when the laws conflict. Critics say that it would create make it almost impossible for federal investigators to pursue carjacking rings, telemarketing scams, and other crimes that easily cross state lines.

The other controversial aspect is the potential danger inherent in the Misconduct Review Board. Opponent Rep. Asa Hutchinson (R - Arkansas) explained on the House floor the broad powers that the Board will possess:

...This board will have access, they will have subpoena power, and they will have access to pending criminal investigations. All their hearings will be public and open to review. They can subpoena the names of witnesses and informants, the identities of under cover law enforcement officials who have infiltrated the operations of the criminal subjects.

An interesting question came up during the floor debate: Would President Clinton be able to use the Board to interfere with special prosecutor Kenneth Starr? Gingrich-led conservatives argued ferociously that the law wouldn't cover that kind of federal prosecutor. But in the final vote, independent counsels like Starr were included -- maybe the GOP majority began thinking of a future time when they would be targeted by an overzealous man like Starr.

Ruskin points to a provision passed last year that requires the Justice Department to reimburse members of Congress "for any legal expenses and other legitimate expenses... in connection with [prosecution]" if the government charges them with lawbreaking, but fails to win in court. Ruskin says this has a side effect making it even more unlikely that a member of Congress would be prosecuted.

But still worse, Ruskin says, were subtle changes to the rules that make it much harder for citizens to file ethics complaints. "The key shift made it so citizens can't file directly. There have been no citizen complaints during this Congress that I'm aware of."

Ruskin says the most damage was done by removing the "letters of refusal" option. Before, a citizen wanting to start an ethics investigation was required to either find a member of the House to sponsor the complaint, or be turned down by three different members. As Representatives are often reluctant to confront powerful colleagues, it was far easier to collect the three letters of refusal. The Congressional Accountability Project used this provision to file complaints against Majority Whip Tom DeLay (R - Texas) and Transportation Committee Chairman Bud Shuster (R - Pennsylvania) (See related story.)

Even The New York Times found those changes shocking: "Despite public concern about ethical lapses in Washington, House Republicans have pushed through new rules designed to make it even harder to hold lawmakers accountable for serious misconduct... by approving provisions designed to make enforcement harder in the name of reform, the House has further harmed the credibility and integrity of the institution and its ethics process."

"The Ethics Committee only benefits 435 very powerful people -- that's why it doesn't get changed," Says Ruskin. "But we change this if just tell our elected representatives that we want vigorous policing of members of Congress."