Congressional Ethics Enforcement: Is Congress Fulfilling Its Constitutional Role?
"I was originally told the question would be, ‘Is Congress Fulfilling Its Constitutional Role' on Members' ethical conduct?," said Professor Dennis Thompson. "But that would have been too easy to answer. We would all probably say ‘no,' and sit down." Asking instead if Congress ‘can' do so is another matter, Thompson continued. The answer is ‘yes,' but it's not doing so now. "Some people are optimistic, but I'm not sure it's the dawn of a new ethics era in Congress. Without credible enforcement, the rules may be observed, but the public will not have confidence in the enforcement process."
Thompson said public confidence can only be restored if Congress delegates part of the ethics investigative process to a semi-independent commission or office of public integrity as some Members of Congress are proposing. As long as Members are judging Members, there's an inherent conflict of interest, not in a financial sense, but in the sense that Members depend on their colleagues to get things done. Thompson said the whole ethics process in recent years has become dysfunctional either from partisan paralysis or from a bipartisan agreement not to do anything. It's one thing to say the people should decide at the polls, but they can only vote on one person, their Member of Congress, and they might like that person. That does not solve the more systemic problem of a non-functioning ethics process. Thompson concluded that some 34 state legislatures now have some form of independent ethics commission to handle complaints before the legislature votes on a Member's guilt or innocence. There's no reason Congress cannot follow this example from the states.
Time magazine political correspondent Karen Tumulty agreed that the last two years have been a low point for Congress when it comes to dealing with any scandals that have arisen. For a good part of that time the House ethics committee could not even meet because Republicans had unilaterally changed the ethics rules to protect Majority Leader Tom DeLay and Democrats refused to operate under those rules. "What we've seen is all these unrelated ethics scandals starting to pop like popcorn all over the Capitol-—the DeLay indictment in Texas, the Abramoff lobbying scandal, Representative Duke Cunningham's bribery for appropriations earmarks, and the Mark Foley page scandal."
Tumulty said "the media is not a good watchdog or a good backstop. Stories run in the back pages of the papers." It's usually not until a prosecutor gets hold of a case and begins to pursue it that the media begin to give the matter more attention. In Congress it's even worse, Tumulty added. "The enforcement mechanisms in Congress always seem to be two steps behind what's going on at the moment." Moreover, so many scandals are rooted in the campaign financing system. Former Speaker Newt Gingrich put term limits on committee chairmen to ensure a too cozy, permanent relationships did not develop with the interests being regulated. But that in turn gave rise to a competition for committee chairmanships that depends in large part on how much money a chairman or prospective chairman can raise for the party. Tumulty says the scandals that really catch the public's attention are those involving life styles, such as the free trips to overseas golf courses.
Congressman Lou Stokes, who served in Congress from 1969 until his retirement in 1998, said he opposes any kind of independent entity exercising any part of Congress's ethics enforcement duties. "I base that opposition on my experience of having served in Congress for 30 years and my experience having served on the ethics committee and as its chairman in three different Congresses." Stokes noted that serving on the committee is "not voluntary, not sought after, and is a dreaded experience." But Members respond to their leadership's requests that they serve because they understand they have an institutional responsibility and it's a job that needs to be done. "Oh, it would be easy to throw up one's hands and say, ‘give it to a commission.' It's tough to take tough stands against a colleague. But the culture of Congress is to take tough stands on issues every day, and it's just as necessary to do the same when it comes to disciplining colleagues. Members on the committee must decide what's fair to the [accused] member, what's in the best interest of the House, and what is acceptable to the public." Stokes said during his tenure on the ethics committee they handled a lot of difficult cases, but that they always managed to work in a bipartisan fashion to develop a consensus. "All of our decisions were unanimous. We never had a dissenting vote on any case we decided." On occasion, Stokes said, the committee found it necessary to hire outside counsel, and that seemed to work out well. Stokes lamented the breakdown in that bipartisan approach in recent years, driven in part by the Republican leadership's attempt to protect one of its own. But he was optimistic that a new tone could be set on the committee given the change in party control and the message voters delivered in the last election.
Congressman Bob Livingston also served on the ethics committee as well as on two leadership task forces charged with re-writing ethics rules and processes in 1989 and 1997. "Congress is the place to deal with these infractions and it should not be turned over to a zealous group of outsiders." In this country, things happen in cycles, Livingston said, including the change in party control of Congress. Any majority will eventually get arrogant and makes mistakes, and the people have an intuitive sense when this is happening. Livingston said one of the reasons ethical lapses occur is that Members aren't around enough in Washington to know what their colleagues might be up to. The short workweeks of recent years have devastated the ability of committees to do their work, especially the kind of oversight they should be doing. And that includes the ethics process.
If there was one area of agreement among the panelists, it was that the process has failed in recent times and a new dedication by leaders and members to fixing it is essential. The differences arose over the best means to restore both the process and public confidence in the Congress.