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No Comment: The story of an ethics complaint and what didn’t happen next

WASHINGTON — Seven months after an ethics complaint was filed against Rep. Erik Paulsen, no one will say on the record if an investigation is ongoing — or even if anyone bothered to look at it at all.

Rep. Erik Paulsen's office says they've never been told of an OCE investigation against him.
MinnPost photo by Terry Gydesen
Rep. Erik Paulsen’s office says they’ve never been told of an OCE investigation against him.

WASHINGTON — With just under two months to go before Election Day and trailing badly in the polls, Rep. Erik Paulsen’s Democratic challenger filed a formal ethics complaint against him, accusing the 3rd District congressman of sending out a deliberately deceptive mailing to constituents at taxpayer expense.

At issue was a graph purporting to show the expanding national debt, where the numbers were correct but the graph line didn’t match the numbers. As detailed in the ethics complaint filed by Jim Meffert’s campaign: The way the numbers were placed showed a steeper curve than the underlying numbers indicated, and a segment of the trend line curves upward without any data to back up the inclusion of a curve on the line.

Essentially, Meffert campaign manager Alex Falconer said in the complaint, there’s no way Paulsen’s data set could produce that graph. An expert from the Ohio State University (aligned with the Meffert camp) said the graph must have been intentionally manipulated. Thus, they claimed, Paulsen abused his franking privileges.

A Paulsen spokesman at the time replied that all the numbers themselves were accurate on the mailer. Furthermore, and central to refuting the core of the ethics complaint, the piece in question had been pre-approved by a bipartisan committee as franked mail (meaning it could be paid for by their congressional office budget at taxpayer expense) with no objection from anyone, not even the panel’s Democrats.

“It was approved by the committee so they obviously didn’t have a problem with it,” then-Paulsen spokesman Mark Giga said at the time.

Chart showing U.S. debt from Paulsen's mailing.
Chart showing U.S. debt from Paulsen’s mailing.
Correct plotting of U.S. debt.
Correct plotting of U.S. debt.

Disputes like this are why there’s a House Ethics Committee in the first place — empanelled to be the impartial umpires calling balls and strikes for issues where two sides disagree.

To assist the committee (and because many have said the Ethics panel is toothless), Congress formed the Office of Congressional Ethics to look into complaints as well, with the goal of helping lawmakers better police themselves. Falconer filed his complaint with the House Ethics Committee, though House staffers said it’s likely the complaint could have been forwarded to OCE.

Yet more than seven months later, neither body has ruled on the Paulsen mailer. What’s more, no one can say publicly that they’ve even bothered to look at it yet.

Watchdog organizations say this incident highlights a core problem with the congressional ethics system: No one really knows — or can say publicly — what the heck is going on behind closed doors.

A whole lot of ‘no comment’
This amount of delay and uncertainty in this case isn’t unusual, say observers.

“In general that’s been the problem with the Ethics committee, is that things go there and it takes so much time,” said Melanie Sloan, executive director of the watchdog group Citizens for Responsibility and Ethics in Washington. “With the House Ethics Committee, you never know if they do anything, but with OCE, they eventually put out a report.”

It appears Paulsen has a completely clean record there — his name has never appeared in a public OCE document, and his office says they’ve never been told of an OCE investigation against him.

In a quarterly progress report filed Monday, OCE reported beginning six new preliminary investigations into complaints against lawmakers (though none were named). One of them was dismissed, five were forwarded on for what’s known as a Phase II Review because a majority of OCE’s board found “probable cause” that a violation “may have occurred.” OCE receives about 100 questions and complaints from the public each quarter.

In its report, OCE was careful to note that doesn’t mean five people are guilty of being particularly naughty. “A decision to undertake a preliminary review or second-phase review should not be misconstrued. Historically the majority of preliminary and second-phase reviews have ended in termination or dismissal of the matter,” OCE noted.

And again, there’s no evidence this is one of those. “Our office doesn’t comment on submissions of information or complaints,” said an OCE staffer, when asked if this case was among the six begun and/or five ongoing.

OCE can’t sanction lawmakers, so the next escalated phase for review — a Phase III, if you will — is to forward things over to the House Ethics Committee. Ethics must publicly acknowledge that they’ve received that within 45 days, unless it’s a recommendation for dismissal, in which case it likely will never be made public.

Though made up of sitting lawmakers, the Ethics Committee is designed to be non-partisan. No matter who holds the House, the Democrats when this complaint was filed or the Republicans who have it now, the committee maintains an equal number from each party to avoid any perceived or actual bias.

Like OCE, much of their actions are kept close to the vest. When I called the Ethics Committee, I was told they too are “not able to discuss” investigations, including whether or not they’re investigating a certain member. When I asked to speak with the chair or ranking member, I got the same response.

The House Ethics Committee is where Falconer’s complaint was originally filed, and here lies another part of the problem, Sloan says. While she says Paulsen’s mailer was “outrageous,” it doesn’t nearly rise to the level of incident the Ethics Committee has been willing to bother with.

“The problem is that, even if the Office of Congressional Ethics is pretty aggressive, the House Ethics Committee is — a lapdog is too kind — so I don’t imagine the House Ethics Committee will do anything about this.”

The quiet, mysterious end of the story
Paulsen’s office, says spokesman Tom Erickson, hasn’t heard about any complaints or investigations from any ethics office or panel on this. Since the franking office cleared the mailer in advance, he says, they don’t expect to either.

That’s the opinion Sloan comes to as well. “If the franking commission approved the mailer, then nothing’s going to happen,” said Sloan, who faults those responsible for pre-approving franked mail (both Democrats and Republicans) for not looking hard enough at the graph. “It’s pretty hard to come down on somebody who got approval.”

That lack of contact to Paulsen’s office means it’s entirely likely that nothing was ever investigated at all. Ethics has to notify the defendant office within five days of receiving a valid complaint, and if Paulsen’s office hasn’t heard anything, then that’s it on that front.

Meffert said he is in the dark as well. “We did not hear back on the complaint,” he said. “I am sure with the change in leadership, we never will.”

OCE, meanwhile, requires at least two members of its six-person board (and at least one from the majority and one from the minority) to initiate an investigation. If nothing is done, the complaint is dismissed without comment. That dismissal before investigation — like those dismissed after investigations — is not a matter of public record.

It should be noted that, by rule (Ethics rule 15.H, specifically), there was absolutely zero chance of this complaint getting ruled on before the 2010 elections. That rule simply states that Ethics can’t even accept complaints filed within 60 days of an election, when the defendant party is a candidate.

The reason for that, says Sloan, is that one doesn’t want campaigns filing frivolous ethics complaints and then going around saying “so-and-so is investigating my opponent for being naughty.”

Yet somewhat ironically, that’s pretty much where this case has resolved, back at the he-said-he-said where it was in September. Meffert’s now-folded campaign is left unvindicated by the official judge and jury. Meanwhile, Paulsen can’t get publicly absolved of any wrongdoing.

So what’s the lesson here?
“The House’s ethics committees are all but useless,” said Sloan. “The public should consider conduct themselves, and not wait for the Ethics committees to take note.”

Further reading: Our report from September 2010 with much more on the details of the complaint.