The Law-or-Ethics Question for Congressional Ethics

January 9, 2017
posted by Bob Bauer

The Republicans in the House made a mess of things on their first day by first moving suddenly to limit the authority of the Office of Congressional Ethics, then retreating under pressure. When action is taken on a matter of Congressional ethics, and both Donald Trump and the New York Times editorial board take exception, something seems to have gone very wrong.

But Frank Bruni has noted that OCE is not all perfection, and that there is a case for a “bipartisan and transparent review of its role” in the congressional system for defining and enforcing ethical standards.  No one would argue that the current arrangement is working especially well.  The Office of Congressional Ethics was meant as one possible improvement: A check on the Members’ instinct to protect themselves or to shy away from judging their colleagues. But OCE’s record is a complex one. The tension and sometimes open conflict between the House Ethics Committee and OCE, one criticized as too passive and the other as too “zealous,” makes for a confused– and, if public confidence is the measure, not reassuring– picture of the state of congressional ethics.

The assumption has long been that congressional ethics depends on reliable enforcement, and that, in the House, with the help of OCE and a push here and there from public opinion, Members can be cajoled and pressured into doing the right thing.  A deeper question may be: what is it that we wish the Members to do–what is the appropriate understanding of their ethical responsibility?

OCE represents a further step toward what might be called the law enforcement model of ethics. The House establishes rules for, say, policing conflict of interests or self-dealing or misappropriation of funds, and then it turns the enforcement over to a cadre of lawyers and law-type procedures. The Members (and staff) who come before the Committee are entitled to representation by legal counsel, and they usually have it. We have allegations of “violations”; a discovery process that includes sworn testimony; and the lawyers hash out whether the rules apply on the specific facts, building into the analysis whatever in the way of precedent might be available.

Because there is the risk that the House’s own lawyers, those serving with the Ethics Committee, may do the bidding of self-protective Members, OCE supplies an independent enforcement function. It operates by design and rule like a law enforcement agency, and it recruits lawyers–most notably, ones with a white-collar criminal or regulatory background–to investigate and advise on the recommendations to the Committee the Office should make. The establishment of OCE answers the long-standing call for Members to “delegate” responsibility for enforcing their ethical obligations, and with this conversion of self-regulation to regulation-by-others, the legalization of ethics advances.

This law enforcement model has its virtues. In some cases, the House must address apparent legal wrongdoing, and the resolution can’t be reached without legal analysis. The Members facing these charges should have due process protections.  Among other reasons for this, they may well face formal legal liability outside the House in the course of regular law enforcement, or on referral from the House.

But the power of the law enforcement model of ethics is such that it can–and indeed tends to– dominate the understanding and development of the House’s function in establishing and enforcing ethical standards. This is a constitutional function. Its importance lies in part in having those who hold office to speak clearly to the ethical requirements of that responsibility. Each Congress must make choices. The choices are each Congress’, and each Member’s, to make, and they are significant largely insofar as the Members make them, and are accountable for them, in their capacities of elected officials.

Mixing up the legal with the ethical, or trying to sharpen up an ethical requirement by casting it as a law-type judgment, materially alters the House’s institutional responsibility. A number of House rules and standards, stated as matters of principle and elastic in their application, operate far outside the realm of legal rules. For example, Members must “never discriminate unfairly” in the conduct of their office, and “never dispense special favors or privileges,” and yet these requirements invite hard questions. How does a Member allocate time when the competing demands for meetings and support come from those within and outside their districts, or from political allies?  And the Members in complying with these requirements must attend to the “spirit” as well as to the letter of the rules, attentive always to the “appearances” engendered by their actions: they must take care not to reflect discredit on the institution. None of these ethical injunctions are, nor are they meant to be, captured in rules amendable to the interpretative and rhetorical skills of lawyers.

The procedural requirements accompanying ethics adjudications are also taken to follow the path laid by formal legal process.  Each new Congress can rewrite or reinterpret the rules or the standards adopted by the ones that came before, and a Member suddenly in the dock, for actions once taken for years without exception, may struggle to assert with any success an ex post facto defense. Due process may still retain its place just on grounds of fundamental fairness, but the House or Senate may construe its requirements as broadly or narrowly as each wishes.  If there is a check on abuse, it is to be found, for these purposes, in a sense of fairness, due regard for the institution, and the operation of public opinion.

There may be an understandable fear that elected officials cannot be trusted with looking after their own ethics. So it may be believed that to have any ethics at all, the rules should be tightened and developed in detail, and the more it all looks and is enforced like law, the better.  To be counted against this view is the danger that more law does not necessarily mean better, clearer ethics.  If the law governing public corruption loosens, does this suggest that the ethical standards and rules aimed at the same sort of misconduct should be loosened as well? The Supreme Court has held in McDonnell v. United States, that in and of itself, the sale of “access” to government officials is not criminal.   The Court in McCutcheon v. Federal Election Commission defended the practice by which politicians may pay special attention to their campaign contributors’ interests–and it did so by appealing to a core conception of representative government.  Yes, the Congress may impose stricter standards on its Members, but it is that much harder to do if it has difficulty distinguishing what is illegal from what is unethical.  And it is harder still when the Court is framing the protections for these behaviors in the language of constitutional rights.

There is, then, a case for reexamining the course taken by the regulation of ethics and the OCE’s role in that development. Nothing that the Republican House majority did, then undid, helps clarify the problem or brings the answer closer.

Category: Ethics

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