17 Nov 2004 House GOP Rule Change: The Right Action

Here is my promised response to Professor Bainbridge’s replyto my response to his post opining that the House Republican Caucus should not (as it did later today) repeal their 1993 rule requiring persons serving in a leadership position to leave their post if indicted. Rather than take the good Professor’s points on a case-by-case basis, I am simply stating what I believe, and leave it to others to judge.

I believe it is bad public policy to let law enforcement authorities determine the leadership of Congress. Voters and caucus members should do so.

I agree the caucus should eject a leader they have solid reason to believe may be corrupt, but believe there are not so many caucus leaders and indictments to make it impractical for members to make case-by-case assessments.

If the caucus could be 99 percent sure no Member ever would be indicted except on the basis of reasonably sound evidence (as I believe was the assumption when the automatic-ejection rule was adopted), it might not matter overmuch if the ejection were automatic, but that is not the situation now.

The DeLay matter is taking place in an atmosphere in which political and policy differences too often (in my view) are criminalized instead of being openly debated and then put before the voters.

In my view, inappropriate and unwarranted investigations, not just indictments, are a key tool of what I believe is an increasing, and non-partisan, problem.

Imagine being accused of criminal fraud because you wrote something about a public policy issue. Would this have a chilling effect on your speech?

Would you be comfortable knowing that your fellow citizens, in the course of expressing their opinion, might face criminal probes?

Would you consider such a state of affairs good for democracy?

If you would, you can stop reading now. I’ve lost you. But if not, let me say this: The use of criminal probes as a political tool doesn’t stop with targeting Tom DeLay, and it isn’t used exclusively by Ronnie Earle, or by just one political party.

Government officials have very many ways of chilling speech.

For you bloggers out there who have a link on your blog asking for contributions: How many of you have even considered whether you might run afoul of laws in several dozen states requiring that persons/entities who solicit contributions register with that state — even if you don’t live there? When you write posts, do you think about the possibility of facing a criminal investigation for fraud by these states if someone disagrees with one of your posts?

I bet most of you take it for granted that this won’t happen.

In the think-tank world, we used to assume that things like this wouldn’t happen, either, but we don’t anymore. Consider these real-life cases:

* A non-profit organization mails a letter stating a position on a foreign affairs issue, and requesting voluntary contributions in support of a project relating to it. An associate at a law firm whose partners made political contributions to the relevant state official sees the letter, and disagrees with the foreign policy position taken. Using his law firm’s letterhead, he formally requests an investigation. The elected official complies.

* A different non-profit organization includes an illustrative, fictitious federal tax invoice in a letter advocating the privatization of certain government services. A liberal lawyer complains to a liberal state official who received campaign contributions from the complainer’s law firm. The elected official hires another law firm — one that also contributed to their campaign — gives them de facto subpoena authority, and conducts an investigation costly to the non-profit group. No wrongdoing is found. However, the state informs the non-profit group that it will only close the investigation if the non-profit pays the bills of the law firm that investigated it.

* After a recent federal budget is signed into law it is discovered that someone who advocates nationalized health care has secretly inserted a provision in the legislation limiting the ability of Americans over 65 to purchase certain health care services outside of Medicare. The provision is unpopular and is a hardship to seniors who need services not covered by Medicare. Think tanks and columnists alert the public and advocate its repeal. A national seniors group sues the federal government, saying the provision violates the civil rights of seniors. The chairman of the House Ways and Means Committee and a respected Senator jointly introduce legislation to repeal the provision. Then, one of the think tanks receives a subpoena and a visit from federal law enforcement. A Congressman who supports federalized health care has asked the federal government to open a mail fraud investigation against the group. The Congressman doesn’t say the group misled the public about the provision’s impact in publications it mailed around the country, but claims — laughably — that the provision simply doesn’t exist. The think-tank is forced to “lawyer up” — an expensive and time-consuming process. Funds that could have gone to public education projects instead go to lawyers, and the group remains in legal limbo for over a year.

If nothing about these stories bothers you, then you can quit reading this post. But if you think America can do better, then I hope you will agree that cases of alleged wrongdoing in today’s heated political atmosphere should be judged on their individual merits and not by a blanket rule that rests on the assumption that all government investigations and indictments have equal or near-equal merit.

And I hope, also, that we can agree that rules which tend to encourage the worst instincts of those (thankfully, rare) prosecutors who are politically motivated are not in our national best interest. The one-strike-and-you’re-out rule of the GOP caucus did tend to encourage overzealous prosecutors (under the rule, Ronnie Earle can get Tom DeLay ejected from his leadership post just by getting an indictment, even if the indictment is later tossed out of court — as Earle’s greatly-publicized indictment of Republican Senator Kay Bailey Hutchinson was). A check on the system, in the form of a caucus vote before indicted leaders are ejected, is a reasonable step.

Moreover, consider this, fans of clean government: What sends a better message? A vote to eject a genuinely corrupt leader, or the automatic ejection of one who can claim he was tossed out on a legal technicality?

Finally, this: Some say Congressmen will not vote to oust one of their own leaders. I believe they will, but, typically, they won’t have to. A party leader who sees a truly serious tempest brewing (think Newt Gingrich following disappointing election results) will leave on his own. If one facing serious ethics charges doesn’t do so, and his caucus doesn’t vote to oust him, the voters will see them all for what they are, and be enlightened. There is value in that.