EVENTS

Date:	Thursday, May 20, 2004
Time:	10:00 AM -- 12:00 PM
Location:	Wohlstetter Conference Center, Twelfth Floor, AEI 1150 Seventeenth Street, N.W., Washington, D.C. 20036

May 2004

Ten Years of Unanswered Ethics Questions

Dozens of ethics controversies involving members of the House and Senate have resulted in surprisingly few investigations over the past decade and little substantive corrective action by the chambers' ethics oversight committees. However, recent firestorms over alleged congressional misconduct have focused considerable media attention on these issues.  A nonpartisan, ideologically diverse coalition of ten watchdog groups, led by the Campaign Legal Center, has assembled this year to push for a thorough reexamination of the current ethics rules.  The coalition includes the Legal Center, the Center for Responsibility and Ethics in Washington, the Center for Responsive Politics, Common Cause, the Congressional Accountability Project, Democracy 21, Judicial Watch, Public Campaign, Public Citizen, and Transparency International.  At a May 20 AEI conference cosponsored by Campaign Legal Center, a panel of leading experts discussed the tumultuous congressional ethics oversight process-past, present, and future.

Trevor Potter
Campaign Legal Center

The ethics committees became very active in the1980s and early 1990s, mainly with complaints filed by outside groups and members of Congress.  In several cases outside counsel was retained, such as in the Packwood and Keating investigations in the Senate and the Gingrich-Wright investigation in the House.  In the 1990s, House rules changed to prohibit outside complaints.  The members agreed to an "ethics truce"--an informal agreement to not bring complaints against each other.  Since that time there have been at least a dozen allegations that were made known in the House.  Of these, only four were brought to the committee, and the two members that were punished were convicted of criminal offenses.  In the Senate, two dozen allegations were brought to the committee's attention, and in only three cases the committee reported undertaking an investigation.  Two of those Senators left office before action was taken; the other received no punishment.

The current controversy is over Representative Nick Smith's (R-Mich.) allegations of attempted bribery in the House Medicare vote.  The Smith case illustrates some of the problems in the House ethics investigation process.  Despite a great deal of news publicity, calls for investigation, reports of FBI agents interviewing people concerning the issue, and a series of Democratic news conference calling for the Republican leadership to encourage the ethics committee to look into the allegation, the ethics committee was slow to announce an initial investigation.  Hesitation in the process stems from a fear of partisan motivations and outlandish complaints.  But Congress has a responsibility to protect institutional integrity, maintain public confidence, and guard most of the members not involved in these kinds of activities from being tainted by the actions of a few.

Fred Wertheimer
Democracy 21

Ethics investigations are a difficult process.  Judging peers is very hard and there is an inherent restraint to do so in any institution.  Over the course of the last thirty years, the organization Common Cause has been involved with four significant ethics violation complaints.  The common denominator in all four cases was that news stories about possible wrongdoing generated formal outside complaints.  In the three cases prior to the "ethics truce," the ethics committee moved forward with an investigation, found wrongdoing, and took disciplinarian action.  In the fourth and most recent case, the ethics committee took no action because no member of Congress issued a formal complaint for fear of violating the "ethics truce."   Sometimes complaints are partisan in nature, but in the three cases before the truce, serious violations were found, proving that just because a complaint comes from the opposite party of the accused does not does not mean that it has no merit.

The outside complaint process needs to be restored and prohibit frivolous accusations.  Further, there needs to be a way to move forward with the investigation of complaints. Great damage is done to the institution when charges are not seriously investigated. 

Bob Walker
Former member of Congress
 
Major problems with ethics reform stems from the polarization of parties in Congress.  Beginning after Watergate, Congress has become increasingly partisan.  The ethics allegation process was exploited to go after opponents. In some cases it was done in a restrained way with a disciplined process to file complaints, but oftentimes it was done frivolously.  The demonization of political opponents was done primarily for fundraising purposes.  Once an opponent had been demonized for their issue stance, it became acceptable to use the ethics investigative process to further discredit an opponent.  Unintended consequences often follow attempts to regulate conduct.  The poisoned partisan atmosphere led to a truce agreed upon by Speaker Hastert and former Minority Leader Gephardt that stunted the ethics investigative process.  The solution is to allow outside groups or members to file a complaint with a committee that has first been approved by the House leadership.  This vetting process will bring discipline to allegations made.

Vic Fazio
Former member of Congress
 
The system is broken largely because there is no significant communication or rapport between the parties.  In 1997, Congress had still not recovered from the bitter acrimony that led to the 1994 Republican takeover of the House, and the only way to cool that atmosphere was to call a truce. During the 1980s, the institution had become encrusted, and changes obviously needed to be made.  Despite the animosity then, there was an overriding sense of responsibility to the institution that elevated the ethics committee to a position of serious authority.  Today members do not know their colleagues.  There is no time to sense the humanity of those on the other side of the aisle.  They do not understand their opponents' values or backgrounds.  Therefore it is easy to demonize one another.  It is unlikely that reform of the ethics process will occur unless you can bring back partisan moderation and the sentiment that the institution is above the party.
 
The press continues to be the most important source for uncovering ethics violations.  Stories, however, are often superficial and therefore necessitate a jury of peers to decide the seriousness of the issue.  There needs to be a system that allows a number of voices to be heard and allows for serious allegations to be dutifully sent to the committee.  We need to call the leadership back to responsibility, and the institution needs to police itself.

Jim Cole
Former outside counsel, House ethics investigations
 
There should not be great concern about the requirements of the formality of the ethics complaint.  The problem is the truce.  The downward spiral of partisanship led to the truce-and an abdication of responsibility.  The current House rule for an ethics violation is "conduct which brings discredit on to the House."  With this rule there is no standard, no mark that you can look to in the future, and no definitive line.  The standard must have some flexibility, but a large amount of mischief is done because there is no hard and fast rule.  If the House is serious about enforcing ethics, the first thing it should do is develop a more definitive standard of what a violation is.  The Constitution gives the House the right to police itself.  There are numerous other groups that can police the House as well, but the House still has that ability itself and in some cases, under the guidelines of the Speech and Debate Clause, the House is the only body that can conduct an investigation.  But the exception should not be the rule.  The issue of outside counsel is tricky.  In past investigations in Congress, outside counsel has done a commendable job.  But there are many examples outside of the House where outside counsel has practiced no restraint and has had limited accountability.  Outside counsel is a demon that should only be used as a last resort. 
   
Stan Brand
Former chief counsel, House Ethics Committee

Ten years is too short a time in the context of American history to determine whether or not self-policing has been effective.  Americans did not invent House discipline; the founding fathers took the idea from English Parliament.  It was not until 1968, however, that the first permanent House Ethics Committee was established.  All enforcement mechanisms have ebb and flow, and the occurrence of disciplinary action is dependent on the amount of pressure put on the enforcers.  The breaking point is when the media and the public force an investigation.  In the 1980s, there were seemingly endless scandals and subsequent investigations.  There is always a period of retrenchment after an active period of enforcement, which allows for evaluation of the process.  Despite appearances of inactivity, it is impossible to know the full extent of the ethics committee activities since the committee can hear evidence and determine the need for an investigation without going public.

Thomas E. Mann
Brookings Institution

America is an outlier that has historically done business differently.  There is an honest distrust of nonpartisan mechanisms.  Americans feel the only acceptable way in politics is to balance the parties, but this often does not happen because of the nature of elections.  Americans do not trust neutral parties; this is evident in other realms, such as partisan election officials and the redistricting process.  Congress has entered into a period of unrestrained partisan warfare.  Party trumps everything, including the institution of Congress.  In order to resolve the ethics problems, there needs to be a much broader change in the environment.  Perhaps a large majority is necessary in order to balance out the anxiety of getting elected.   More specific changes to the ethics process should include using outsiders at one stage of the process.  Virtually every other professional arena or institution uses outside bodies to determine misconduct.  An outside party is needed to observe the evidence and determine if it is sufficient for prosecution.  There would also need to be a mechanism for punishing those who abuse the reporting system.

Norman J. Ornstein
AEI

Congress's self-regulatory system is unique in governing bodies.  It is nearly impossible to police oneself without coming under a cloud of suspicion.  The system Congress has established has made it difficult to report misconduct.  If you do, you are seen as playing party politics, and if you do not, it is assumed you are covering something up.  Part of the problem is the press, who went crazy over-reporting in the 1980s and early 1990s, and has now gone to the opposite extreme.  There are shocking stories out there that only occasionally appear in the papers.  If it does not have public pressure from the press, Congress will not police itself, especially a Congress that cares only for partisan politics.  However, an outside counsel is not the solution; Congress itself must administer the final judgment in order to carry any weight.  Determining whether an investigation should occur should come from an outside, neutral group, consisting of individuals with impeccable character who are familiar with the legislative system, such as former members or staffers.   The press must also pay attention.  Without the press signaling there is a problem, Congress will downplay or ignore the violations. 

AEI research assistant Kimberly Spears prepared this summary.