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The House Ethics Committee is broken — particularly when it comes to sexual harassment

Two investigations, two conclusions in the case of one Republican representative (who is still in office).

Rep. Blake Farenthold (R-TX).
Tom Williams/CQ Roll Call

On December 12, 2014, Lauren Greene filed a lawsuit in DC District Court against her former boss Rep. Blake Farenthold (R-TX), alleging that Farenthold had told an assistant in his office that he fantasized about her and acted inappropriately toward her and other women in his office.

The lawsuit was just another step in the process. Greene had already been through a months-long mediation process on Capitol Hill, through the Office of Compliance. She would also be subjected to two new investigations, one through the independent Office of Congressional Ethics (OCE), the other through the House’s Committee on Ethics. Both would examine thousands of pages of evidence, from Gchats to text messages, and interview members of Farenthold’s staff, with the committee interviewing Farenthold. One would reject her allegations by a 6-0 margin; the other would “pause” its investigation into Farenthold for more than a year before relaunching it in the wake of the #MeToo movement on Capitol Hill.

Nearly four years after Greene says that Farenthold’s harassment began, the OCE’s staff director is now under investigation himself for assaulting women. And the House Committee on Ethics has announced the formation of a new subcommittee to investigate allegations against Farenthold (who has decided to retire). But the question remains: In the #MeToo era, are the House of Representatives’ ethics processes up to the challenge?

The House Ethics Committee is supposed to be the solution. It isn’t.

The House Committee on Ethics is intended to be a necessary corrective, investigating violations of the House of Representatives’ own Code of Ethics (which includes sexual harassment, under House rule 23, clause 9) overall. Made up of 10 members of Congress (five from each party) and just under 30 staffers (they’re looking to add more), the Ethics Committee examines allegations and can recommend punishments — in fact, it’s the only body that can adjudicate violations and punish members of the House.

Newt Gingrich was reprimanded by the Ethics Committee in 1997, the first speaker of the House to be punished in such a manner. The committee recommended former Ohio Rep. James Traficant for expulsion from the House in 2002; the House voted to expel him by a vote of 420-1.

There are two ways allegations of misconduct can get in front of the Ethics Committee. According to committee rule 18(a), the committee can open an investigation based on any information it has that a member (or officer or employee) violated the official code of conduct or any law. For example, a news report about a House Member could trigger an investigation.

In addition, anyone (including members of the public or House staff) can submit information or a complaint to the Office of Congressional Ethics, an independent, nonpartisan body created in 2008 that focuses on investigating claims of wrongdoing or unethical conduct by House members. The Board of the Office, made up of private citizens, then makes a recommendation to the House Ethics Committee to further review the charges or dismiss the charges, or, in the case of a tied vote, no recommendation at all.

The OCE process looks something like this:

The Office of Congressional Ethics investigatory process.

But it quite often gets more complicated. For example, if the OCE rules to dismiss charges against a House representative and the Ethics Committee agrees, no report of the matter ever needs to be made public. In fact, it’s only if an investigation makes it to the House Ethics Committee that information gained by the OCE is ever made public. In short, if the OCE is investigating someone, no one else — including members of the House, the Office of Compliance, or other potential victims of wrongdoing — needs to know. And vice versa — the OCE found out about Greene’s allegations against Rep. Farenthold not from the Office of Compliance, but from the media.

Rep. Jackie Speier (D-CA) has been one of the leaders in the House in the fight against sexual harassment on the Hill, and told me that the current Ethics Committee process was deeply flawed. “I think it’s clear that Congress needs to improve its handling of ethics investigations,” she said. “I also have questions about the apparent lack of oversight to ensure the investigations are taken up when needed, and not only in cases that are made public through the work of the press.” She added that the House ethics process needed an ombudsperson “to ensure this badly needed oversight occurs, and that the investigations are fair, thorough, and focused on the victims’ needs and not just the needs of the institution.”

Two investigations, two conclusions

By the time Greene filed her lawsuit in December 2014, she hadn’t worked for Farenthold in nearly six months and had already moved out of DC. But according to Greene’s attorney, Les Alderman, it wasn’t until that lawsuit became public knowledge and was reported on in the media that the Office of Congressional Ethics learned of its existence, and of allegations of sexual harassment against Farenthold.

The Office of Congressional Ethics conducted an investigation, interviewing Greene’s colleagues in Farenthold’s office, including former legal counsel Rachel Wolbers. In an interview, Wolbers told me that she testified in front of the OCE for nearly two days and gave them every single email and text message she’d sent to Greene, Farenthold, and Chief of Staff Bob Haueter. “It was just a very, very thorough investigation,” she said. On June 29, 2015, the board of the Office of Congressional Ethics voted 6-0 to dismiss the charges against Farenthold.

But according to Wolbers and Alderman, the House Ethics Committee had launched its own investigation into Farenthold. In fact, after an investigation in which the committee interviewed Greene, Wolbers, and other staff members, the Ethics Committee interviewed Farenthold himself. And despite the OCE’s recommendation to the Ethics Committee, the Ethics Committee decided against dismissing the charges. Instead, the committee, in effect, “paused” the investigation in September 2015, claiming that because the case against Farenthold’s office was still in court, the committee could not make a ruling, or even issue its own public report on the allegations (and there’s no requirement that a report be issued by OCE publicly if the Office has ruled to dismiss charges).

Even when Farenthold and Greene reached a settlement in November 2015, the case stayed paused — most likely because the Ethics Committee was unaware that Farenthold had used taxpayer funds to settle the case.

According to Alderman, the committee asked for another interview with Greene in the fall of 2016, two years after she’d filed a lawsuit in district court. “But we explained to them that Lauren was trying to move on with her life, [and] that it seemed like this information they were looking for was already available to them by way of the Office of Congressional Ethics interview that Lauren sat for and the documents that we had provided already,” he said. It wasn’t until this fall, he said, that the committee asked for another interview with Greene. And it’s only within the past week that the committee has taken real action against Farenthold, forming an investigatory subcommittee to reexamine the charges against him.

Republicans used the OCE ruling as a shield against calls for Farenthold’s resignation

Because the allegations of Farenthold’s harassment were rejected by the Office of Congressional Ethics board, House Republicans — including Speaker Paul Ryan — largely ignored recent calls for Farenthold to resign (with the exception of Utah Rep. Mia Love). And now that Farenthold is promising to retire in 2018, House GOP leadership will likely consider the problem solved. But those same allegations are still under investigation by the House Ethics Committee, the only entity with the constitutional power to expel or otherwise punish a sitting member of the House of Representatives. An investigation that has taken, all told, more than three years and resulted in no clear ruling one way or the other.

There will be more charges of sexual harassment and discrimination against members of the House of Representatives. And right now, the House ethics process is making life easier for members of the House — and harder for victims of harassment.