The 115th Congress began with a bang, as House Democrats and transparency activists—even House Speaker Paul Ryan and President Donald Trump—blasted an effort by a few Republicans to strip the Office of Congressional Ethics of independence, effectively gutting the internal watchdog.
Democrats loudly applauded the withdrawal of the provision from proposed House rules, yet they have remained strangely silent about a more insidious change that makes it more difficult to prosecute incumbents for corruption or misuse of public funds.
Previously, official records of a congressional office were the property of Congress as a whole. The new rule, adopted January 3, states:
Records created, generated, or received by the congressional office of a Member, Delegate, or the Resident Commissioner in the performance of official duties are exclusively the personal property of the individual Member, Delegate, or the Resident Commissioner and such Member, Delegate, or Resident Commissioner has control over such records.
It is a stunning change for a body with historically low approval ratings and little transparency. The way Members conduct business and spend taxpayer dollars is already largely shielded from public view.
Financial records are released only quarterly, with a 60-day lag after the last day of the reporting period. Expenditures are not required to be detailed and are frequently lumped together in such way that it is virtually impossible to determine who is spending what, when, and for what purpose.
The opacity makes it impossible for the public to know if lawmakers and staff are abiding by rules and laws, or within the spirit of the restrictions, which is required by House ethics rules.
But this new rule takes it a step further. Official records generated by a Member of Congress during the course of conducting public business are now considered the personal property of the lawmaker, clearing the way for a Fifth Amendment defense in response to a demand to produce documents during the course of an investigation.
Because Congress so generously exempted itself from the Freedom of Information Act, the public is prohibited from acquiring official records that detail how lawmakers spend tax dollars or even from seeing a calendar that documents how lawmakers spend their time. The member’s communication with businesses or lobbyists also lurks in the darkness.
But those records were previously accessible to investigators with the Office of Congressional Ethics (OCE) and Department of Justice, forming the only line of defense for taxpayers against misuse of public funds or corruption. For example, official records allow investigators to trace the original source of materials or to determine whether taxpayers are footing the bill for campaign activity. Without access to those records, it could be difficult or impossible to adequately document illegal or unethical activity.
But that doesn’t seem to be a concern for Eighth District Representative Rick Nolan. In a video shared on January 6—three days after approval of the new House rule—Nolan stated, “I’m so glad that we were able to push back on Republican efforts to diminish the ethics standards here in the House.”
In his January 9 Monday Report, Nolan implied that OCE was created by the Democratic majority and said if it needs to be fixed, there should be “an open debate and discussion in which the American people have a seat to watch and make their own judgments.”
Nolan conveniently never mentioned the rule change, which was certainly not subject to open debate. The OCE was, in fact, a bipartisan effort, stemming from recommendations of the Special Task Force on Ethics Enforcement appointed by Speaker of the House Nancy Pelosi and House Minority Leader John Boehner. Criticism of OCE has also been bipartisan—both parties attack the watchdog when one of their own gets caught with dirty hands.
This latest move by Congress to carve out even more special treatment for its already privileged members does nothing to increase public confidence in government and adds to the discontent voters so clearly expressed last November.
Republicans are in control, but Democrats can hardly claim the high ground if they don’t consider a rule that hampers ethics investigations to be a serious breach of ethics standards.
Silence is not golden; rather, it speaks volumes.
A member of Investigative Reporters and Editors, Shelly Mategko is an award-winning journalist.