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September 1, 2014

From the Archives: McConnell’s Role in Packwood Probe

KYPOL14 038 041214 445x296 From the Archives: McConnells Role in Packwood Probe

McConnell campaigns back home over the April recess. (Tom Williams/CQ Roll Call)

Former Sen. Bob Packwood’s sexual harassment scandal has resurfaced as a campaign issue — nearly two decades later.

Senate Minority Leader Leader Mitch McConnell, R-Ky., recently recalled his role in the ouster of Packwood, the Oregon Republican and Finance Committee chairman who resigned in disgrace back in 1995.

McConnell, then the Ethics chairman, was tasked with leading the investigation because Republicans controlled the chamber. The inquiry had Packwood on the verge of expulsion.

“The chairman of the Senate Finance Committee, a member of my party, had a case before the Senate Ethics Committee with regard to sexual harassment. In those days 20 years ago much of this was never taken seriously by anyone,” McConnell said on April 12 at a campaign event. “I was chairman of the Ethics Committee charged with the responsibility of dealing with a member of my own party as chairman [of] the most important committee in the Senate. After investigating the case and bringing together all of the evidence I moved to expel him from the Senate. And the Senate on the verge of expelling him, he decided to resign.”

McConnell’s campaign circulated video of his comments on the subject.

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The stroll down memory lane was prompted by recent sexual harassment complaints in the Kentucky state legislature. McConnell criticized Democrats’ handling of the incident in an interview with the Lexington Herald-Leader published Wednesday.

Because Thursday is the day for #throwbacks on the Internet, here’s a brief look at the pages of Roll Call from those debates.

Democrats have seized on an earlier point in the Packwood case, reminding voters in the hotly contested Kentucky race that 19 years ago McConnell resisted calls from those inside and outside the Senate, including Sen. Barbara Boxer, D-Calif., to hold open Ethics Committee hearings. Of course, open Ethics hearings have not generally been part of the investigatory process in more recent years. Boxer currently holds the traditionally thankless Ethics chairwoman position.

The story itself is fascinating because so many of the characters involve remain in the Senate today.

Roll Call reported on July 20, 1995, that Boxer was preparing a floor amendment to try to force open Packwood hearings, which prompted the GOP majority, including McConnell, to look for a counter move:

Once Boxer offers an amendment — which under Senate rules she can attach to any pending legislation — she loses control of the floor. At that point, the Senator with priority of recognition, who is ultimately Majority Leader Bob Dole (R-Kan), can offer an amendment that supersedes Boxer’s.

That tactic would achieve the Republican goal of preventing a vote on Boxer’s amendment, which will call for immediate public hearings into Packwood. At the same time, it would maneuver a vote on an issue Republicans want to emphasize: alleged misconduct by Democrats.

If Boxer proceeds with her amendment — she has given Senate Ethics a Friday deadline to act before she proceeds on the floor — McConnell has talked about forcing a retaliatory floor vote on hearings into Daschle, Sen. Ted Kennedy (D-Mass) for the 1969 Chappaquiddick incident, and President Clinton over the allegations of sexual harassment leveled by Paula Jones, sources said.

But at the meeting Tuesday, Cochran argued against pursuing an amendment strategy, making the point that Republicans risk appearing petty.

Instead, Cochran argued for moving to table the Boxer amendment, and Republican sources said there is optimism the GOP will have the 51 votes needed to do so.

In moving to table, Cochran said Republicans could point out in floor speeches — instead of through a formal amendment — the double standard they see in subjecting Packwood to hearings and not Daschle, Kennedy, or Clinton.

Dole this week declined to answer a reporter’s questions about whether Chappaquiddick happened too long ago for a Senate investigation now. Chappaquiddick is the Massachusetts island where Kennedy in 1969 drove his car off a bridge. A young woman with him in the car drowned as Kennedy saved himself.

“It was ’69, the same year as the first allegation against Packwood,” Dole noted.

Of Boxer, he said: “She’s very partisan and maybe sees it as her partisan duty to offer this kind of motion. I just hope she doesn’t do it. You can carry grandstanding too far.”

Ultimately, the mountain of evidence against Packwood made his resignation inevitable. It took effect on Oct. 1, 1995.

On Nov. 2 of that year, McConnell and fellow Ethics committee member Barbara A. Mikulski, D-Md., the two members of the Ethics panel at the time, dismissed the idea of splitting investigatory and adjudicatory functions in a Roll Call opinion piece. The McConnell-Mikulski guest column appears below:

With the resolution of the case against former Sen. Bob Packwood (R-Ore), the inevitable Monday morning quarterbacks have emerged to offer their ideas for the Congressional ethics process.

In fact, the Senate Select Committee on Ethics demonstrated that it is unquestionably well qualified to pursue misconduct cases, from the investigative through the punishment phase. No Senator takes pleasure in judging his or her colleague, but this case, which took so many unpredictable twists and turns, proved conclusively that the Senate is capable of doing so when necessary.

Nonetheless, critics would have us abdicate our constitutional responsibility and contract out the ethics process (Roll Call, “A Blueprint for Ethics Reform,” Sept. 11). Establishing an “Ethics Commission,” comprised of retired Members, former judges, or other citizens of distinction, is the most widely made recommendation. The proponents of such a system claim that Members have an inherent conflict of interest in investigating a colleague and then sitting in judgment of the Senator.

These commentators argue for a bifurcation of the process: separating out the investigative phase from the adjudication and punishment stage. Further, they propose that the investigative stage be delegated to those outside the legislative branch and that the responsibility of any internal ethics committee should be confined to rendering a judgment.

Such bifurcation would be a mistake. In fact, it is precisely because the Select Committee on Ethics lived with the details of the Packwood case over the two-and-a-half-year period that the committee concluded, unanimously, that the harshest penalty of expulsion was warranted.

As the evidence mounted, the members of the committee gradually arrived at the consensus result. The obstruction of justice charge was particularly offensive in that the conduct was aimed directly at the members of the committee and the Senate.

Two years ago, a Senate Ethics Study Commission rejected the bifurcation scheme, for good reason. The Constitution clearly authorizes the Senate (and the House) to “punish its Members for disorderly Behavior, and with the Concurrence of two thirds, expel a Member,” in Article I, Section 5.

In 1964, the Senate established the modern Select Committee on Ethics, envisioning it would work on a completely bipartisan basis: It is the only Senate committee comprised of equal numbers of Republicans and Democrats. In accordance with the committee’s rules, any decision to pursue an investigation must be made by at least four members of the committee.

The design of the committee ensures that every case is given thorough consideration and that consensus be achieved before the committee proceeds. The rules particularly protect the minority party, ensuring that the majority party is not empowered to use the ethics process for political gain. In the Packwood case, almost every major decision was made unanimously.

The second criticism leveled at the Ethics Committee is that the panel operates out of the public spotlight. Critics contend that the American people won’t have confidence in government they can’t see. But meeting in executive session at the early stages enables the committee to pursue allegations from any and all sources, including newspapers and television broadcasts, as well as what in a courtroom might be considered hearsay evidence. And confidentiality gives some witnesses the needed courage to come forward and cooperate with the committee’s procedures.

As cases proceed to a more serious phase, the committee has a practice of making a public record. In some cases, this consists of a public hearing. In other cases, including those of Packwood and then-Sen. David Durenberger (R-Minn), a public record was released, consisting of all relevant evidence compiled in the case.

But where complaints are found groundless and dismissed without a full inquiry or investigation, the committee has a practice of not informing the public of the result, just as the committee declines to let the public know of every allegation filed with the committee. The mere accusation of wrongdoing can irreparably harm an individual and destroy the confidence citizens have in an elected official. So, unsubstantiated allegations that are deemed frivolous and are dismissed by the committee are not disclosed.

The third criticism raised about the Ethics Committee, and the Packwood case in particular, is the length of time it takes to resolve a case. The reality is, however, that the more serious Ethics cases are no different from complex litigation. Cases are unpredictable; they take unexpected turns and, too often, they expand from narrow allegations to wider violations, as happened in the Packwood case. Holding the Ethics Committee to arbitrary time constraints is unrealistic.

While each stage of a case, if not managed properly, could result in some duplication and repetition, the committee worked diligently to ensure against such a prospect in the Packwood case. The preliminary inquiry, which could be a cursory review of the charges, was a probing examination of all the allegations. Depositions and affidavits were taken, documents were sought, and evidence from a wide range of sources was gathered.

By the time the committee voted to proceed to the formal investigation stage, 264 witnesses had been interviewed and 16,000 pages of documents had been amassed. Had the committee been constrained by time, it is unlikely that such a thorough investigation could have been accomplished. Shortcuts won’t work and may do an injustice to the accused as well as to the individuals bringing the charges.

In 1993, the Senate Ethics Study Commission made a series of recommendations at the conclusion of its review of the ethics process. Most of the recommendations endorsed current Ethics Committee procedures. For example, it has been the longstanding practice of the Ethics Committee not to be limited by any statute of limitations in reviewing allegations. The Ethics Commission agreed that Senators hold a public trust and should be held to the highest ethical standards during their tenure; narrow technical rules should not be used to skirt the Senate’s responsibility for redressing serious misconduct.

In addition, the committee currently evaluates information of possible misconduct from any source and does not require formal certification or a sworn complaint to begin an inquiry. The public expects the highest standards of conduct from their Senators, and the Ethics Commission concurred that no investigation should be hampered by such formalities in making a preliminary assessment of whether wrongdoing occurred.

No doubt there can always be improvements made in the ethics process. But there should be no question that the Senate Select Committee on Ethics is capable of fulfilling its mandate to investigate allegations of improper conduct and recommend disciplinary action to the Senate.

As difficult as this mission is, the Senate has proven we can police our own.

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