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Ethics office probing Bachmann has tense relationship with House members

REUTERS/Jonathan Ernst
The crux of the Bachmann ethics investigation: whether there were, as a former staffer alleges, improper payments to campaign operatives from her political action committee and whether Bachmann herself knew about them.

WASHINGTON — One of the lasting legacies of Michele Bachmann’s boom-and-bust presidential campaign will be the legal headaches she still carries from it, including a newly revealed investigation into potential campaign finance violations from the Office of Congressional Ethics.

But what is the OCE? In the word jumble of bureaucratic Washington acronyms, OCE is certainly not the most prominent. But in the realm of government ethics watchdogs, the five-year-old House agency actually plays a fairly prominent role.

Congress founded the OCE in 2008, establishing an outside ethics review organization, good government activists say, because of a lack of confidence in the standing House ethics panel.

The office serves as a sort of grand jury, investigating potential ethical lapses by members, staffers and officers in the House (the Senate has its own ethics panel), forwarding cases with sufficient evidence to the House Ethics Committee for further investigation and potentially formal punishment.

The OCE filled a bit of a loophole in the congressional ethics rulebook. Before OCE’s inception, the House Ethics Committee would only investigate potential ethics violations if it was tipped off by members of Congress themselves. OCE can look into tips from any source, be it a tipster, a Federal Elections Commission filing, or even a news report, as long as two of the group’s eight board members vote to do so.

Before 2008, “there was no cop on the beat for members of Congress other than the Ethics Committee, which was made up, of course, of members of Congress,” Stephen Spaulding, staff counsel at the government watchdog group Common Cause, said. “For too long, they’ve operated without someone looking over their shoulder. The OCE provides that accountability.”

How an investigation works

As soon as the office initiates an investigation, it informs both the ethics committee and the member in question, then dives in, looking at documents and conducting interviews with would-be witnesses who choose to cooperate (unlike the Ethics Committee, the OCE has no subpoena power).

A preliminary investigation takes 30 days, OCE senior counsel Bill Cable said, at which point the board decides if there’s probable cause to continue digging. If there is, the office can conduct a second 45-day investigative phase (which is where the Bachmann inquiry is, according to the Daily Beast). But doing so commits the OCE to filing a report on the matter with the Ethics Committee, either recommending further review or not. The Ethics Committee would then decide whether to do its own investigation and determine appropriate punishment.

If the Ethics Committee takes up the case, the OCE filing becomes public. But if it chooses not to follow up, the report comes out at the end of a congressional session anyway, revealing when the board decided not to investigate potential ethical lapses.

“The public disclosure is what spurs the House Committee on Ethics to do their jobs,” said Bill Frenzel, a former Minnesota congressman who sits on the OCE’s board of directors. “I think when we sit there we think of ourselves as kind of a grand jury but we are very conscious of the fact that we don’t find guilt or innocence. We simply send the case forward with info or let it go.”

In Bachmann’s case, which OCE officals would not discuss, investigators are likely trying to figure out two things: Whether there were, as a former staffer alleges, improper payments to campaign operatives from her political action committee, and, since OCE and the ethics panel only have jurisdiction over House members and not campaign staffers, whether Bachmann herself knew about them.

In a Monday statement, Bachmann’s lawyer said: “There are no allegations that the congresswoman engaged in any wrongdoing. We are constructively engaged with the OCE and are confident that at the end of their review the OCE board will conclude that congresswoman Bachmann did not do anything inappropriate.”

Members tried to cut its funding

The OCE only sends about one-third of its total investigations on to the Ethics Committee, Cable said. In 2011-12, it took up 32 cases and recommended the Ethics Committee consider 13 of them.

Still, House members have a tense relationship with the office, often accusing it of going after potential ethics violations too vigorously. In 2011, North Carolina Democratic Rep. Melvin Watt tried to amend an appropriations bill to slash the office’s budget by 40 percent. Watt, who had been cleared by an OCE investigation the year before, said the office was “unfair, undemocratic, and they have singled people out.” The amendment failed, though it garnered 102 votes (Bachmann, campaigning for president, did not vote).

Good government advocates say there’s an easy answer for lawmakers’ reticence: No one wants their conduct to be investigated, especially if said investigations might become public.

“We think the OCE does a terrific job,” said Melanie Sloan, the executive director of Citizens for Responsibility and Ethics in Washington. “They have forced the Ethics Committee to be much more aggressive than it was previously.”

Frenzel said that House members can’t be too upset with the job the OCE does — after all, members have to reauthorize the board every two years, at the beginning of a new congressional session.

“We believe they wouldn’t have created it and kept it going unless they thought we were doing some good,” he said.

Devin Henry can be reached at dhenry@minnpost.com. Follow him on Twitter: @dhenry

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