Posted: 3/5/07
Related topics: Federal Candidates & Officeholders | Lobbying Reform

 
    In both the New York Times  ("Locking Up the Ghost of Congress Past," Mar. 3, 2007) and the blog space of the Campaign Legal Center, the House has been exhorted to support, as the Senate has not, an “independent” office to police congressional ethics.  The beginning of former Congressman Ney’s prison term is given as the occasion for further and favorable reflection on this proposal.  That he is off to jail, normally proof that some “system” works, is shrugged off as cold comfort.  This is the complaint:  Congress sat on its hands, failing to call to account this and other wrongdoers from the Abramoff network.  The ethics process should have been heard from and it was not. 

    Of course, the voters were heard from, and Republicans lost control of the House (and Senate) at least in part because their ethics did not pass muster.  This was the political response, and the criminal justice system, quite active on this front recently, generated a legal response.  What then does the Times and the CLC want from the House ethics committee?

    In these circumstances, where criminal laws were broken, it is not wise to expect too much from the House.  If it gets into the middle of things, it will complicate the lives of prosecutors who, responding to the public clamor for justice, are fully capable of conducting the investigations in an orderly and eventually effective manner.  This problem is not solved by having “independent” ethics professionals act in the place of Members of Congress.  At least Members answer to the public, just as prosecutors are accountable to the Executive Branch.  Those who are “independent” act, by definition, with less accountability, or they would not be branded “independent.”  To have these independents foul up a criminal investigation is even less desirable than leaving investigative authority—including the authority to suspend investigations while prosecutors do their work—to Members of Congress.

    The House might be expected to more readily, more appropriately, judge Members whose failures are not criminal in nature and who are not being chased by a bevy of prosecutors and FBI agents.  Its charge might sensibly be to speak to institutional “ethics,” in the broadest sense—to define and uphold those standards of conduct that attach to the position Members of Congress occupy.  For these standards to count for anything, Members should be the ones to establish and administer them, and the public can evaluate for itself, as it should, the acceptability of the results.  As both a constitutional and representational duty, it is the Members’ to discharge.  

    Many voters, it is believed—enough voters to change control of the government—concluded that Republicans in the last Congress abrogated that duty.  There is reason to believe that they related that failure to others, and more generally and fatally to a political breakdown of which the myriad ethics and legal delinquencies were symptomatic.  The Congress did express itself on ethics; it did establish a record.  The public responded.  The system worked.

    Two models vie for control of the ethics regulatory process.  One is a constitutional and political one, and the other is modeled on the legal process and expected to function like one.  Any one ethics code and course of administration borrows more rather than less from one of these two models.  The Times and the CLC would borrow heavily from the legal model, expecting that independents would run the show and limit the politics—and the political options—in the choice, preparation and pursuit of “cases.”  They say that House members would retain control—the authority to make the final decisions—but their gambit is clear:  to limit their control over the enforcement of their own rules.  

     This would be done at great cost to the constitutional and political model and to a public entitled to know, in each Congress, how the Members of the Legislative Branch define and administer their standards of conduct.  Members don’t hide by refusing delegation of this task to independents.  The downfall of the last Congress should be convincing proof of this.  By running things, the previous Congressional majority could not hide.