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Outside Panel Won’t Resolve Core Ethics Problems

Now that President Bush has signed into law S. 1, the Honest Leadership and Open Government Act of 2007, it is fair to ask what sort of enforcement regime for the new rules Members of Congress can expect from the Senate Ethics Committee and the House Committee on Standards of Official Conduct, also known as the House ethics committee. As in so much of life, the answer is: It depends.

The Senate Ethics Committee has long functioned quietly and methodically to evaluate ethics complaints and allegations of misconduct in a professional, nonpartisan manner. That track record reflects the relative collegiality of the Senate and the inclination of the respective party leaderships to leave ethics matters “to the professionals” for sorting out. There is every reason to expect that the Senate committee will bring the same balanced enforcement to the new rules that has characterized its operations in the past.

The House ethics committee, however, is a different matter. Although the committee has undertaken some tough investigations in recent years — most notably, its inquiries regarding former Majority Leader Tom DeLay (R-Texas) and former Rep. Bud Shuster (R-Pa.) — it has been cleaved by partisan turmoil and deadlock for much of the period since the conclusion of the cases against former Speaker Newt Gingrich (R-Ga.) in 1997. The nadir of this devolution occurred in 2005, when two seasoned attorneys on the committee’s nonpartisan staff were fired in apparent retribution for their work on the DeLay investigation, and two committee members believed to be “politically unreliable” by their party leadership were summarily jettisoned.

Now, there is potential for even further disequilibrium in the House ethics process. At issue is the pending determination by the Special Task Force on Ethics Enforcement as to whether an outside panel should be established to conduct a preliminary review of ethics complaints and make recommendations to the House ethics committee on whether investigative action should be undertaken.

As a former investigative counsel to the House ethics committee who investigated both Democrats and Republicans — and as a former federal prosecutor — I fully appreciate the importance of conducting thorough, independent investigations. I also appreciate that the establishment of an outside ethics panel might enhance public confidence in the integrity of the House ethics process. But the creation of an outside ethics panel will not solve the core problems that currently afflict the House.

Real ethics reform in the House begins with a willingness on the part of both party leaderships to refrain from political intervention in the ethics process and give the ethics committee the independent, professional resources it needs to do its work. All the new ethics laws and rules in the world will amount to nothing unless the party leadership on both sides refrain from politicizing the ethics process, the committee members ultimately charged with implementing them are committed to consistent, nonpartisan enforcement, and committee members do not have to worry about retaliation from their party leadership or fellow members.

Establishing an outside ethics panel also would constitute a historic abdication of the House’s constitutional responsibility for self-regulation. Article I, Section 5, Clause 2 of the U.S. Constitution states that “Each House [of Congress] may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and with the Concurrence of two thirds, expel a Member.” Although the drafters of the Constitution chose the permissive “may” rather than “shall,” it is clear that they intended to create a system of peer review where Members of Congress shoulder the responsibility for weighing allegations of other Members’ misconduct. The establishment of an outside panel to evaluate ethics complaints would be an unprecedented deviation from more than 200 years of self-regulation. Moreover, it would be tantamount to an admission that the House is now unable to fully govern itself and needs protection against its own improper impulses.

Nor, if established, would an outside panel likely improve the House ethics process. First, none of the publicly reported proposals under consideration to establish an outside panel divests the House ethics committee of ultimate decision-making discretion as to whether ethics violations occurred or what sanctions to impose if a violation is found. Creating an outside panel, moreover, would simply create another layer of ethics bureaucracy that further slows down a process already characterized by sluggishness. Second, making informed assessments of allegations of misconduct requires more than the mere application of law or rules to facts: It also requires a nuanced understanding of the institutional context in which the alleged misconduct occurred. Arguably, the need for such a nuanced understanding is particularly great in the case of a political institution that has its own unique cultural attributes. It is possible that retired Members of Congress could bring the necessary perspective to bear if appointed to an outside ethics panel. It is less likely that retired jurists, academicians or individuals from other professions would be equally capable of making the necessary contextual judgments.

That the committee would retain autonomy to reject the recommendations of an outside panel ignores political realities surrounding ethics scandals. If, for example, the outside panel recommended that the committee initiate an investigation — a recommendation that almost certainly would become publicly known — the pressure on the committee from interest groups and the news media to accept the panel’s recommendation would be formidable.

Clause 1 of House Rule 23, which comprises the Code of Official Conduct, states that “A Member, officer, or employee of the House of Representatives shall conduct himself at all times in a manner which shall reflect creditably on the House of Representatives.” The special task force would bring credit on the House by rejecting the idea of an outside ethics panel and recommitting the House to ethics enforcement marked by bipartisanship and consensus.

David H. Laufman, a partner at the Washington, D.C., law firm of Kelley Drye Collier Shannon, served as an investigative counsel for the House Committee on Standards of Official Conduct from 1996 to 2000 and as a senior attorney on the 1997 House Ethics Reform Task Force.

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