My colleague Brian Svoboda, an expert in congressional ethics, has written an insightful commentary on how we might think about the ends and design of effective congressional ethics regulation. This is a complex and important question to which altogether too little attention has been devoted. Brian’s extensive experience with these issues in private practice, coupled with his grasp on the broad policy and constitutional issues, enable him to effectively frame the issues for the discussion–and reforms-that are needed. He also tweets periodically on these issues at

Brian’s commentary follows:


From an Essay on Impeachment, a Useful Perspective on Congressional Ethics

Greg Weiner cogently argues in The New York Times that we should view the impeachment process institutionally in light of its constitutional design. (Full disclosure: while I used to work with Weiner in the Senate, my views are meant neither to be his nor anyone else’s.) Weiner says that impeachment’s purpose is not retributive, but prophylactic and forward-looking. The process is meant to “protect the public against future acts of recklessness and abuse.” Impeachment serves as a safety valve in the overall constitutional machinery to keep the system functioning properly.

While the processes and standards are markedly different, Weiner’s argument is highly relevant to Congressional ethics enforcement also. Since the House last reformed the ethics process in 2008, creating the Office of Congressional Ethics as an independent investigative authority, there has been a conspicuous lack of reflection over what the purposes of ethics enforcement really are, and how those purposes are best served. Weiner’s institutional approach offers one good perspective for this sort of reflection.

Like impeachment, the ethics enforcement process comes from the Constitution: Article I, section 5, clause 2’s “Rules and Expulsion Clause.” And, like impeachment, the ethics process ultimately has a “systems” purpose: how do the House and Senate keep themselves working properly?

The ultimate sanction—expulsion—is surgical. You remove an organ to save the “body.” For example, a Member takes bribes and has to leave. There’s an inevitable tension here between the chamber’s power and the people’s will. A Member can be popular at home and enjoy great celebrity, and yet the health of the body can still require the Member to leave the Capitol, as happened with Ohio Representative James Traficant.

Sanctions short of expulsion can and do occur where a Member clearly violates community standards and the chamber must send a message to everybody. The formal process of an investigative subcommittee, a statement of alleged violations and a floor vote on sanctions is what people used to think about when considering the ethics process; the Senate’s investigation of the so-called “Keating 5” is a prime example. Yet, as with expulsion, these sanctions’ purpose is not simply or even primarily to punish. It’s to preserve the system’s integrity by affirming and restating its core values—“we don’t do that here.” These sanctions are strong medicine for the “body” and are neither easily nor comfortably taken. The human reluctance to pursue such remedies may have contributed to the sense—argued fervently by reform organizations—that the chambers can’t effectively police themselves and an independent office like OCE is necessary for their proper operation.

The questions get harder when a Member breaches a stated norm, but in a way that doesn’t substantially affect the system’s health. Like others in their jobs, conscientious Members and staff make mistakes. Often, this happens because we have come to view congressional ethics in the same “overly legalistic way” as Weiner says we see impeachment. The House Ethics Manual is 456 pages long and replete with distinctions that would have enthralled a Pharisee 2,000 years ago—between the slider served sitting down at a company reception, and a mini-slider served standing up; or between the Congressional statement to which a Member’s campaign impermissibly links from its website, and the same text that the campaign permissibly refashions and republishes a few days later after its official use is “exhausted.” While there may be logic behind these distinctions, they are traps for the unwary.

The system used to deal with these sorts of lapses mainly through an “advisory” process, and to some degree it still tries to do that. A Member would get a private letter or phone call from the committee, pointing out the error and telling her to do better. Think of it as like a red-light camera ticket that doesn’t take points off a driver’s license, or a detention that doesn’t show up on a high school transcript and wreck college admission prospects. The purpose is deterrence and it almost always works. When contrasted with the surgery of expulsion, or the chemotherapy of formal House action, this “advisory” process is like a prescription antibiotic.

Yet, in the House, these types of lapses are increasingly dealt with in public through mandatory disclosure, with OCE referring matters both large and small to the Committee on Ethics. There is a serious question as to whether public enforcement in these types of cases actually helps the institution operate properly. Instead, the process can end up being like Jeremy Bentham’s “dog-law”—a pure exercise in negative reinforcement with little real effect on future conduct or the chamber’s health.

Where the ethics process most conspicuously fails is when the Members who run it use it to serve partisan ends. Recently, both chambers’ ethics committees have worked conscientiously to avoid this pitfall. But partisanship has happened—most conspicuously in the House ethics wars of the 1990s—and it can happen frequently on the margins. When sanctions are partisan, they are no longer prophylactic or medicinal. The sanctions become self-harm; the “medicine” poisons the patient. As Weiner says of impeachment, the ethics process can’t simply be “a contest over power” if it is to perform its proper institutional function.

Since the last major changes to the ethics process in 2008, when the House created OCE, the debate over that process has been almost entirely political—for example, over whether Members seek to embrace accountability or avoid it; or whether some groups are hurt disproportionately in the process. Lost in the debate is the sort of perspective that Weiner offered about impeachment: where does the ethics process fit into the constitutional design, and are the recent changes actually helping the system to function properly? The debates over ethics enforcement are not going to end anytime soon, and Greg Weiner’s essay offers an interesting way of thinking about them.

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