Congressional Ethics Before the Court

June 23, 2015
posted by Bob Bauer

For all the study expended on public corruption and possible measures to control it, few take seriously or pay much attention to the “ethics” rules that Congress makes for itself.  Something interesting is going on here.  On the one hand, supporters of campaign finance reform are quick to defend Congress’ legislative handiwork over the years.  Defenders of McCain-Feingold deny that it was infected with incumbent self-interest.  Upholding the new law against constitutional challenge, the Court in McConnell v. FEC even situated it within a long history of Congressional steps to combat corruption, characterized as   “careful” and “cautious” and deserving of deference. 540 U.S. 93, 117 (2010)[citations omitted].  Yet when Members prescribe rules to govern their conduct in dealings with supporters or donors, the applause is thin and it is rare that legislators get even the benefit of the doubt.

It is possible that an important part of the story has been missed, or underplayed, and that the Supreme Court may have the opportunity to rectify, if only indirectly, the imbalance.

Experts on Congressional ethics, including former counsel to the House, have urged the Court to take account of the effectiveness of the Congressional ethics regime.  They have come to this question in a brief arguing for the Court to consider “speech and debate” issues raised by the Renzi case.  They argue that limiting constructions of the constitutional privilege are not required for successful prosecutions of public corruption.  The criminal laws work well enough, they maintain, and Congress’ own rules against violations of the public trust supply a meaningful measure of protection.  In the case of the House, they point to the part played in recent years by the Office of Congressional Ethics:

In the experience of Amici, who have represented several dozen Members or staff in OCE investigations, there has been a dramatic increase in scrutiny and discipline of Members, and a large number of cases result in referral and criminal prosecution – – without raising concerns under the Speech or Debate Clause. 

Brief of Stanley M. Brand, Morton Rosenberg, Thomas J. Spulak, and Charles Tiefer As Amicus Curiae In Support of Petitioner, Renzi v. United States of America, No. 14-1082 (April 8, 2015) at 13-14.

The argument made here centers on the OCE, and that office was established on the theory that the existing mechanisms for the enforcement of the rules, administered entirely by Members, was inadequate.   It might be thought, then, that rather than show Members committed to strong rules, the establishment of the OCE only underscores their unreliability, at least in the House.

This is too simplistic, since the OCE is the most recent development in a decades’ long transformation of Congressional disciplinary rules and institutions.  The Members themselves took this step as the latest in a series in both Houses that have included the professionalization of the ethics committee staffs, the tightening of rules, and consequential investigations, including ones that have toppled Speakers and Committee Chairs.

Institutional norms matter, and these may have to be developed from within, then “internalized.”  Complaints about the Supreme Court’s transparency policies are fundamentally directed against an institutional reflex, an instinctive recoil from openness. Internal rules serve to guide and condition that reflex over time.   In the case of Congress, from the 1970’s reforms through the “Keating Five” inquiry to the OCE, the rules have contributed slowly but surely to changes in accepted standards of conduct. And while it is true, as reform advocates will surely argue, that the rules sometimes come about only under political pressure, reflecting and not leading the changes in standards, it remains the case that the rules assume an importance of their own and make their own significant contribution over time.

The time devoted to this aspect of political reform seems slight when compared with the prodigious energies expended on campaign finance reform.  It is not a question of choosing between the two, but one of recognizing that “officeholder ethics” is neither an oxymoron nor a sham.  And ethical rules and norms don’t pose quite the same challenge in fashioning anti-corruption rules compatible with the free speech and association rights of constituents,supporters, critics or opponents. The “insiders” put themselves, not primarily others, under restrictions, and they are the ones accountable for complying with them.

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