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A Year in Congressional Ethics Retrospective

As 2011 began, it had been more than four years since the 2006 elections that sparked the latest government ethics boom. In exit polls from those elections, voters had cited ethics and corruption as the No. 1 reason for their vote, beating out even terrorism and the economy.

The next year, Congress passed the Honest Leadership and Open Government Act, one of the most significant ethics bills ever passed. The issue of government ethics has since remained in the spotlight.

By the end of 2010, however, it was fair to ask whether this latest ethics boom had begun to wane. 2011 answered that question with a bang. For the time being, at least, government ethics remains in the spotlight. Ethics scandals, investigations, and other similar news-making events were all part of 2011.

Perhaps the biggest ethics story of the year was the investigation of former Sen. John Ensign (R-Nev.) for conduct surrounding his affair with a former staffer. The Ensign matter was groundbreaking in several respects.

For one, it marked the first time in more than 20 years that the Senate Ethics Committee took the step of appointing a special counsel to assist with an investigation.

Second, the matter resulted in the first criminal charges under the Honest Leadership and Open Government Act. Those charges were not against Ensign but against former staffer Doug Hampton, the husband of Ensign’s mistress, for alleged violations of “cooling-off” restrictions, which prohibit former staffers from lobbying immediately after leaving Congress.

And third, the Senate Ethics Committee continued its investigation even after Ensign resigned. In May, the committee released a report that acknowledged it no longer had jurisdiction to discipline Ensign but nonetheless stated that “substantial credible evidence” existed that gave “substantial cause to conclude that Senator Ensign engaged in violations of law.” The Senate Ethics Committee referred the matter to the Department of Justice and the Federal Election Commission, which have taken no action as of yet.

Also in 2011, former Sen. John Edwards (N.C.), the Democratic Party’s 2004 vice presidential nominee, was indicted for alleged misconduct in the aftermath of his extramarital affair. Edwards’ indictment in June was notable in that it threatened to stretch campaign finance criminal law further than it had ever been taken before. The prosecution contends that hundreds of thousands of dollars contributed by Edwards’ friends and given to his mistress to help cover up the affair qualified as campaign contributions under federal law. Edwards’ legal team disputes this interpretation. Now pending is the prosecution’s motion to prevent two former FEC chairmen from providing trial testimony on Edwards’ behalf that would refute the prosecution’s proposed interpretation of FEC regulations.

On the House side in 2011, fallout continued from the investigation of New York Democrat Charlie Rangel’s alleged ethical violations. In February, criminal charges were filed against the purported sponsors of several trips to the Caribbean that were at issue in Rangel’s investigation. The sponsors were alleged to have concealed the true sponsors of those trips.

Also in February, a former House staffer was convicted for accepting an illegal gratuity after a lobbyist paid for the staffer to attend a 2003 World Series game.

In May, the House Ethics Committee named the well-regarded Dan Schwager as its new staff director and chief counsel. 

In June came the matter of Rep. Anthony Weiner (D-N.Y.), who admitted to sending lewd photographs and text messages to several women. An ethics investigation never got off the ground, though, as Weiner promptly resigned.

In July, the committee took the unprecedented step of initiating an investigation of itself. It hired outside counsel to review allegations of misconduct by committee staffers in their handling of an ethics investigation of Rep. Maxine Waters (D-Calif.).

Late last year, Waters was to face an ethics trial on charges of allegedly helping to arrange meetings with Treasury Department officials on behalf of a bank in which her husband owned stock. Shortly before the trial was to begin, however, it was canceled, and the committee announced that new materials had been discovered suggesting that the matter warranted further investigation before trial. Two committee staffers were suspended and later left the committee altogether. The outside counsel’s review is ongoing.

Also in July, House Minority Leader Nancy Pelosi (D-Calif.) asked the Ethics Committee to investigate Rep. David Wu (D-Ore.) amid allegations of sexual misconduct with the 18-year-old daughter of a campaign donor. Again, however, Wu resigned before the committee could act.

Meanwhile, a major ethics story from the past several years continued in 2011: the singling out of registered lobbyists for different legal treatment than nonlobbyists. The executive branch’s Office of Government Ethics introduced several new policies that again provide one set of standards for registered lobbyists and organizations that employ them and another set for everyone else. The increase in restrictions did not slow in 2011 and shows no signs of slowing next year.

Without question, 2011 was a busy year in government ethics. Best wishes for a happy holiday and an ethical new year.

C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.

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