Redstate

By Brad Smith Posted in User Blogs — Comments (3) / Email this page » / Leave a comment »

From the diaries . . .

The liberal lobbying group Democracy 21 has come out in favor of an "Office of Public Integrity" to "clean up " Congress.  This office will be "independent," "must receive adequate resources" (whether Congress will be able to control its budget is unclear) and "should have a professional, nonpartisan staff led by a publicly credible, professionally experienced individual."  

Steve Hoersting, Executive Director of the Center for Competitive Politics, has a little warning tale.  See below the fold...

Lobbying Reform: Alligator Emerges From D.C. Swamp

By Steve Hoersting, sitting in for Brad Smith

As a coequal branch of the Federal government, established by the Constitution, Congress has always taken the responsibility of policing its own.  While there has been scandal over the years, to be sure, the institution has managed to reform itself over time and to correct many of its abuses.

But after the Abramoff scandal, even the most innocent Members of Congress are searching for ways to get the so-called "reform" organizations to stop calling their institution corrupt.  So Democracy 21, one of the higher profile "reform" organizations in town, has obliged with a plan to establish a "new, independent Office of Public Integrity in Congress to oversee and enforce the congressional ethics rules."

The Office's jurisdiction would cover both the House and Senate and would "have a professional, nonpartisan staff led by a publicly credible, professionally experienced individual."  If you've not met the folks at Democracy 21 and wonder who they might view as publicly credible or professionally experienced--and you're a Democrat--picture Larry Klayman.  If you're a Republican, picture ... well, Larry Klayman.

The duties of the Office would include advising Members on the interpretation of ethics rules, investigating potential violations on the basis of the "Office's own inherent jurisdiction", and presenting cases and evidence to the ethics committees for decisions of whether violations have occurred.  "The Office must receive adequate resources to effectively carry out its duties" says Democracy 21, "and funding should be provided on an entitlement basis ... not by annual appropriations."   In other words, once the Office were established Congress would have no authority to reduce its budget, and limited ability to replace it with something else, or simply shut it down.

For many years the Federal Election Commission had just such a "reformer" as its General Counsel: a "professionally experienced individual", approved by Democracy 21, who made his career enforcing "ethics" against others.  He's not there anymore, having since moved on to bigger, more independent, reform projects.  But when he was at the FEC things were "professional" and "independent."  His team of "nonpartisan professionals helped advise Members of Congress on the meaning of the campaign finance rules; investigated cases based on the Commission's own inherent jurisdiction; and presented cases and evidence to the Commissioners for decisions of whether violations had occurred.  His team would administer, investigate and compile the cases, and draft summaries of all "relevant" information.  They even summarized the respondent's arguments for him, and submitted that summary to the Commissioners, including in it an assessment of the overall merits of the case and a recommended course of action.  When, on occasion, a member of a Commissioner's staff would request to see a document cited in a summary or relied upon by the respondent, the professionals would suggest the staffer first get support for the request from a majority of the Commissioner's colleagues; after all, the professionals were busy doing the work of the People.  The "professionally experienced individual" would review all cases for final edit before sending them to the Commissioners.  If a favorable vote looked unlikely, he would occasionally withdraw his recommendation until his team could work on the case further.  The case would be resubmitted later, with an additional but informal recommendation that the Commissioners take no extra time to consider or investigate the case further, lest the statute of limitations run.  Soon it seemed that nearly all the larger cases, or those with strained legal theories, were submitted for Commissioners' approval closer and closer to the statute of limitations.

After a time, several respondents thought the FEC's legal theories were too far a field and its findings unjust, so they sued.  The Commissioners yielded to the professional's recommendations and supported the litigation.  But in nearly a dozen cases Federal courts overwhelmingly rejected the professional's theory, culminating in a case wherein Judge Michael Luttig, writing for the Fourth Circuit, noted that the FEC's argument--that "no words of advocacy are necessary to expressly advocate the election of a candidate"--was untenable, contrary to long-established precedent, and sufficient reason for the Fourth Circuit to take the highly unusual step of awarding attorneys fees to the respondent.  The professionally experienced individual didn't miss a beat, recommending that the Commissioners not enforce the rule in the Fourth Circuit but should enforce it every where it wasn't specifically invalidated, and then extended his theory to a whole new class of communications.  Soon the RNC, the DNC, the AFL-CIO, several state party committees, a coalition of business organizations, and the Christian Coalition found themselves in protracted investigations before the FEC.  Each of these entities, every one, was exonerated, some after six years and subsequent Federal litigation.

So, eventually, the Commissioners stopped taking the recommendation of its independent professional, and decided it would be better to focus on tougher enforcement of clear violations.  The professional later left the FEC, and the time it took to resolve cases soon began to decline.  Routine violations were punished more rapidly, but witch-hunts into alleged "conspiracies" came to a halt.  And do you know what happened?  The "reform" community --led by Democracy 21 -- called those Commissioners, of both political parties, corrupt.  They called for the resignation of some, and called for a complete remaking of the institution--perhaps, in the image of a czar, an "independent" one, of course.

Installing an independent Office of Public Integrity in the halls of Congress has all of the foresight and feasibility of bringing a pet alligator into your home.  The hatchling's novelty quickly wanes as its opinion on when and what's for dinner progresses from bellowing recommendation, to agitating hiss, to threatening roar.  No matter how conscientiously its keeper adjusts or accedes to its needs, the gator seeks more and still more, until after a time it becomes unclear what if any meal would satisfy its appetite or for how long.  And it becomes even less clear--to the keeper, anyway--whether the gator is living in your house, or you're living in his.