Speaker Nancy Pelosi’s (D-Calif.) ethics enforcement task force is charged with looking at how state ethics commissions, boards and offices operate and how private entities ensure ethical practices. In its review, the task force will find that 23 states have established independent oversight panels for lawmakers. The experience in the states demonstrates the efficacy of such panels and should soften even the most ardent opposition.
While varied in participants and procedures, state ethics bodies have several common features; all have: outside panelists who oversee a professional director and a staff of impartial investigators; clear and mandatory conflict-of-interest guidelines; defined terms for panelists; the power to receive complaints from the general public; and the authority to launch investigations without legislative or outside approval. Two states provide guaranteed funding to further insulate the process from partisanship.
But in Congress, ethics committees are made up of colleagues who know and work with one another and who rely on each other’s support to move bills or raise campaign money, creating both the appearance and reality of a conflict. The vast majority of Members are honorable and honest, but the system does not include even the most rudimentary aspects of an impartial process. Conflict-of-interest rules are advisory only. Panel members have no guaranteed terms and have been removed for taking actions that met with disapproval from their colleagues. Complaints in the House can be filed only by Members, limiting the ability of outside and more impartial observers to have their concerns reviewed.
The current system is not only flawed, it lacks credibility with the public. This winter, a post-election poll found that fewer than one in six Americans gives Congress high marks for honesty and ethical standards. Eighty-four percent support independent oversight for Congress.
Skeptics of independent enforcement might consider that the creation of an impartial panel better protects Members against frivolous complaints. While not formally recognized by the House, individuals and outside groups routinely send complaints to both ethics committees. Because of absolute secrecy and in the absence of formal action, these complaints hang over the heads of sitting Members.
Compare that with state commissions that have clear timetables for action, including reaching decisions in cases of frivolous complaints. Some states allow for sanctions against individuals who file such complaints. In West Virginia, no complaints are accepted or acted on within 60 days of an election. These measures protect against smear campaigns aimed at incumbents and provide necessary information to voters.
Several Members have argued that the resolution of last year’s scandals, which led to the conviction of two Congressmen and top aides, is evidence that ethics enforcement in Congress works. The actual facts leading up to the convictions, however, are more an indictment of the current process than a testament to its success. A whistle-blower who took his case to the media and the Department of Justice — not to the ethics committees — uncovered the dealings of former lobbyist Jack Abramoff.
Neither ethics committee is allowed to publicly state whether it looked into the matter or considered if other Members broke any rules, regardless of whether outside laws were broken. The secrecy of the process encourages public distrust and seeds doubt that Members take these scandals seriously.
The best state oversight panels allow for reasonable disclosure of actions taken. Several states report on each complaint filed and whether it was dismissed or referred for further action. Investigations largely are done under rules similar to those that surround grand jury proceedings. The results of the investigations are then made public.
The two proposals to reform the enforcement process that have been introduced in Congress offer differing but workable and state-tested models for ensuring the rules are enforced fairly and with integrity. The Speaker’s task force and all Members should follow the lead of almost half of the states and embrace the idea of independent ethics enforcement.
Gary Kalman is the democracy advocate for U.S. PIRG.