December 7, 2004
The Honorable Joel Hefley, Chairman
The Honorable Alan B. Mollohan, Ranking
Minority Member
House Committee on Standards of Official Conduct
HT-2 Capitol
Washington, DC 20515
Dear Mr. Chairman and Mr. Mollohan:
We are writing to seek clarification about the Committee’s
November 18, 2004, letter to Rep. Chris Bell. At the end of the
letter, you articulated a new ethics policy, stating:
[W]e also wish to make the point to you — and, by public
release of this letter, to all House Members and staff — that
it is highly improper, and a basis for the initiation of disciplinary
action, for any House Member or staff person to attack the integrity
of this Committee or any of its members.
With due respect, we question the basis — and, indeed, the
constitutionality — of this new policy. We have served in
the House for decades, and we understand the important role played
by the Ethics Committee. In fact, it is because of our longstanding
commitment to welfare of this institution and its members that we
are writing this letter. In our view, members of House have not
only the right — but also the obligation — to speak
out when they question the actions of the House or its committees.
We recognize that special rules of decorum govern what members
may say on the floor of the House. But we have always understood
that in communicating with other members, the public, and constituents,
members retain their rights to express their opinions. We may not
agree with statements that individual members make criticizing the
Ethics Committee, but we do defend their right to voice their views.
In the past, there have been countless examples of House members
who have spoken out against the actions of the Ethics Committee
or its members. These statements often questioned the motives of
the Committee or its members. Yet they were regarded as part of
the occupational hazards that all committees and members of Congress
inevitably face, not as a basis for disciplinary action.
Recently, several House members criticized the Ethics Committee’s
decision to admonish Majority Leader Tom DeLay. For example, Rep.
Tom Feeney said: “I don’t know why the Republicans went
along with this political hatchet job.”1 Rep. John Sweeney
said: “The thing that’s disconcerting for people is
the ethics committee did a move that gives themselves cover and
the standard they applied is a standard that didn’t exist.”2
At the time, there was no suggestion that calling the actions of
the Ethics Committee a “political hatchet job” would
subject a member to potential discipline.
In 1997, Rep. John Boehner, who was then the chair of the House
Republican Conference, attacked the motivations of the ranking member
of the Ethics Committee, Rep. Jim McDermott, and called for his
removal from the Committee. On a national news program, Rep. Boehner
said: “Well, I think that the Ethics Committee ought to throw
him off the Ethics Committee, because it’s clear, as we’ve
seen for weeks, that this is not an ethics case against Newt Gingrich.
What that is, is a partisan political fight to reverse what —
what the Democrats couldn’t do at the ballot box, to try to
take control of the Congress.”3
Long before he became Speaker, Rep. Newt Gingrich criticized what
he perceived to be inaction by the Ethics Committee. Referring to
Democratic House members that he believed should be investigated,
Rep. Gingrich said: “In each case, nothing was done by the
only body within Congress, the Committee on Standards of Official
Conduct, entrusted with the power to police the House. . . . The
ethics committee seems to protect the institution rather than police
it.”4
This is not a partisan issue. Democratic members have also criticized
the Committee or its members. For example, Mr. McDermott made this
statement in 1997 about the Ethics Committee’s investigation
of Mr. Gingrich: “At every turn the Republican majority on
the Committee has delayed, stonewalled, or otherwise obstructed
sensible efforts to get at the whole truth. . . . Complaints lodged
against Members of the Minority have been used as barter in negotiations
over sanctions for the five instances in which the Committee found
Speaker Gingrich to have violated House Rules.”5 The year
before, former Democratic Whip David Bonior stated: “The ethics
committee has done worse than stonewall — they are actively
participating in a coverup on Newt Gingrich’s behalf.”6
A strict reading of the Committee’s November 18 letter suggests
that these statements would now trigger disciplinary action. And
that’s what has prompted our letter. The right to express
dissent and disagreement — even if it involves strong language
that may offend others — is fundamental to our system of government.
There is First Amendment precedent that bears upon these concerns.
According to the Supreme Court, “[t]he manifest function of
the First Amendment in a representative government requires that
legislators be given the widest latitude to express their views
on issues of policy.” Bond v. Floyd, 385 U.S. 116, 135-36
(1966). In this case, the Supreme Court held that the Georgia House
of Representatives could not exclude an elected member from office
for statements he made criticizing the federal government’s
Vietnam policy. In finding that the exclusion violated the representative-elect’s
First Amendment rights, the Court stated that the “interest
of the public in hearing all sides of a public issue is hardly advanced
by extending more protection to citizen-critics than to legislators.”
Id. at 136.
Indeed, “the Court has frequently reaffirmed that speech
on public issues occupies the ‘highest rung of the hierarchy
of First Amendment values,’ and is entitled to special protection.”
Connick v. Myers, 461 U.S. 138, 145 (1983) (citations omitted).
Even for House staff, “a public employee does not relinquish
First Amendment rights to comment on matters of public interest
by virtue of government employment.” Id. at 140.
The new ethics policy raises other concerns, too. We are not aware
of any basis in the House rules for the new policy. The November
18 letter appears to create a rule for the Ethics Committee that
does not apply to other House committees, yet it does not explain
the basis for this disparate treatment. And the decision of the
Committee to single out a comment by Rep. Bell’s staff, while
overlooking comments made by Republican members, suggests that the
policy may be susceptible to selective enforcement.
We appreciate the difficult work of the Ethics Committee, and we
know that it can be a thankless job to sit in judgment over colleagues.
We also believe that preserving the authority of the Committee and
respect for its decisions should be of paramount importance to all
members of the House. But having said this, we are concerned that
the language of the November 18 letter is overly broad and could
have a chilling impact on the rights of House members and staff
to express criticism of the Ethics Committee.
We respectfully request that the Committee reconsider this issue
or provide further guidance to members.
Sincerely,
Henry A. Waxman
Ranking Minority Member
Committee on Government Reform
David R. Obey
Ranking Minority Member
Committee on Appropriations
John D. Dingell
Ranking Minority Member
Committee on Energy and Reform
1) After Ethics Rebukes, DeLay’s Fortunes May
Now Lie with His Party’s, New York Times (Oct. 8, 2004).
2) Hefley: “I Was Threatened,” The Hill (Oct. 13, 2004).
3) Fox News Sunday, Fox News (Jan. 12, 1997).
4) House Rejects Outside Ethics Panel, New York Times (July 1, 1987).
5) Back to the Main Event: Counsel’s Report on the Speaker
Due Today, Roll Call (Jan. 16, 1997).
6) Democrats Press Ethics Panel to Step up Probe of Gingrich’s
Use of Nonprofits, Washington Post (June 26, 1996).
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