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Every so often, government ethics becomes a hot issue. It suddenly captures the attention of the public, the media and, consequently, legislators. The latest ethics wave began in 2006. After a rash of headline-grabbing ethics controversies in the GOP-led House, voters in the 2006 elections thrust Democrats into power, citing ethics and corruption as the No. 1 factor in their votes.
Legislative action soon followed, including tougher House and Senate ethics rules. For the first time, Congress extended the gift rules to people outside Congress, exposing certain businesses and individuals to civil and criminal liability for violations of those rules.
The new rules caused a virtual frenzy among those affected. Lobbyists packed seminars seeking guidance. Businesses adjusted their compliance programs. Congressional employees worried about the rules’ effect on their personal lives and even wondered whether they might somehow be forbidden from going out on dates. Caterers created new “ethics-friendly” menus that were designed to comply with the new rules.
But amid the frenzy, many observers doubted that the focus on ethics would last. They had seen similar spikes many times before. Each time, they noted, attention gradually faded. Rules were eventually relaxed.
Four years later, were the observers right? The jury is still out. By at least one measure, there is evidence that they were. Ethics does not make the news as often as it did when this wave began. A search of Roll Call’s archives for stories using the word “ethics” confirms this. Admittedly, not every story using the word “ethics” is necessarily about Congressional ethics. The search picked up, for example, one story that mentioned someone’s “work ethic.” In addition, the search does not include stories that ran only on the paper’s website. Nonetheless, as a rough guide, the results do suggest a trend, as, beginning in 2007, the number of stories using the word “ethics” has declined each year.
Yet, by other measures, the issue of ethics has hardly faded at all. In fact, a good case can be made that it has heated up. Most notably, this year marked the first time that two Members of the House were to face ethics charges in an adjudicatory hearing within months of each other. To put this in perspective, consider that, before 2010, the last House ethics adjudicatory hearing was in 2002. That means that for eight years there were no adjudicatory hearings at all. Then, within months of one another, there were to be two.
The first, of course, was the adjudicatory hearing of Rep. Charlie Rangel (D-N.Y.), which resulted in his censure. The second is the hearing of Rep. Maxine Waters (D-Calif.), which is up in the air. Last month, the ethics committee’s adjudicatory subcommittee sent her matter back to the investigatory subcommittee “due to materials discovered” that may have had an effect on the investigatory subcommittee. Even if the hearing does not go forward, the mere fact that the Rangel and Waters hearings were initially scheduled within weeks of one another is historic. In fact, if Rep. Eric Massa (D-N.Y.) had not resigned in March after allegations of misconduct, it is conceivable that there could have been three adjudicatory hearings this year.
Meanwhile, 2010 also brought an increase in the activity of the Office of Congressional Ethics, the body that was created by the House to review and screen ethics complaints filed by members of the public. According to the OCE’s third-quarter report, through the first nine months of the year it had commenced 44 preliminary reviews of allegations of misconduct. By contrast, in all of 2009 the OCE reported commencing just 25 preliminary reviews.
On the Senate side, things were comparatively quiet in 2010. After admonishing Sen. Roland Burris (D-Ill.) in late 2009, the Senate ethics committee did not take public action against any Senator in 2010.
Looking ahead to 2011, one story to follow will be the fate of the OCE. While the OCE’s public disputes with the House Committee on Standards of Official Conduct continued in 2010, some lawmakers sought to rein in the OCE.
In June, Rep. Marcia Fudge (D-Ohio) introduced a bill that would have restricted the OCE’s authority to open investigations and to publish information about its investigations. More recently, questions have been raised about whether the OCE will continue to exist at all. Some GOP leaders opposed the OCE’s creation in 2008, leaving many now wondering what will become of the office when Republicans take control of the House next year.
The OCE’s fate could play a role in what may be the biggest question that lies ahead for 2011: whether the spike in ethics trials was an anomaly or a trend. While the investigation of Rangel began before the OCE even existed, the Waters proceedings originated in the OCE. That begs the question of whether she would ever have faced an investigation, let alone an adjudicatory hearing, but for the existence of the OCE.
Should we expect more adjudicatory hearings next year? Is the latest ethics wave fading? Or is it just getting going? Stay tuned in 2011.
C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.