Q:
I have been following the story regarding Sen. David Vitter’s (R-La.) alleged contacts with the “D.C. Madam,” who is said to have operated an escort service in Washington, D.C. I wondered whether Vitter’s alleged phone calls to the service could lead to action by the Ethics Committee. I have read conflicting reports. Some say the Ethics Committee might recommend discipline against Vitter, while others say the committee lacks jurisdiction because he was not in the Senate at the time of the alleged contacts. Will the Ethics Committee recommend discipline?

A: You are really posing two questions: Does the Senate Ethics Committee have jurisdiction over Vitter’s alleged contacts with the D.C. Madam? And, if the committee does have jurisdiction, is it likely to recommend discipline? [IMGCAP(1)]

The first question raises a much-debated issue regarding the scope of the committee’s jurisdiction. Some argue that the committee has broad authority to investigate essentially anything that might bring the Senate into disrepute, in which case the allegations concerning Vitter could qualify. Others respond that the committee’s jurisdiction should be limited to the “official conduct” of Senators and Senate employees, in which case the allegations would not qualify.

The Senate’s authority to discipline its members originates in Article I, Section 5 of the Constitution, which states in relevant part: “Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.”

Under this constitutional authority, in 1964 the Senate passed Resolution 338, establishing what is now the Ethics Committee. That resolution authorizes the committee to “investigate allegations of improper conduct which may reflect upon the Senate, violations of law, violations of the Senate Code of Official Conduct, and violations of rules and regulations of the Senate, relating to the conduct of individuals in the performance of their duties as Members of the Senate, or as officers or employees of the Senate.”

The italicized clause appears to limit the committee’s jurisdiction to the performance of official Senate duties. If this were right, then the committee would not have jurisdiction over conduct occurring prior to joining the Senate, such as Vitter’s.

However, the Senate ethics manual takes the position that the italicized clause modifies only some of the language that precedes it, and specifically does not apply to the clause “improper conduct which may reflect upon the Senate.” The manual quotes from a 1954 report regarding a resolution to censure Sen. Joseph McCarthy (R-Wis.): “It seems clear that if a Senator should be guilty of reprehensible conduct unconnected with his official duties and position, but which conduct brings the Senate into disrepute, the Senate has the power to censure.”

In applying this standard to Vitter, one could argue that, even though his alleged conduct occurred prior to joining the Senate, it nevertheless now reflects upon the Senate and brings the Senate into disrepute. If so, the timing of Vitter’s conduct would not remove it from the committee’s jurisdiction.

On the other hand, timing aside, one could argue that the nature of Vitter’s conduct puts it beyond the committee’s jurisdiction. This is because the manual defines “improper conduct” as conduct that is so notorious or reprehensible that it could discredit the institution as a whole, not just the individual. An argument exists that Vitter’s conduct doesn’t rise to this level. Yet, the committee could decide that it does and thus claim to have jurisdiction.

Assuming that the Ethics Committee would claim jurisdiction, the next question is whether the committee is likely to exercise it. Last week the D.C. watchdog group Citizens for Responsibility and Ethics in Washington formally requested an investigation, in part because solicitation of prostitution is a criminal offense.

Because of CREW’s request, the Ethics Committee will at the very least conduct a preliminary inquiry, even if it is very limited in scope. The purpose of such an inquiry is to determine whether there is cause to conclude that a violation has occurred. If the committee concludes there is such cause, the Ethics Committee may then proceed to a full-fledged adjudicatory review to determine whether to recommend discipline.

Yet, it is unclear that CREW’s request will even reach an adjudicatory review. While the watchdog group has raised the possibility that Vitter committed a criminal offense, criminality alone may be insufficient to justify an adjudicatory review. After all, the committee has limited resources to devote to investigating ethics violations, and there are lots of potential criminal offenses that the committee would not be too keen to make the subject of such an adjudicatory review. For example, while some states have statutes criminalizing adultery, it seems unlikely that the committee would initiate a review of every potential violation of such statutes.

Perhaps it is no surprise then that the Senate has never disciplined someone for anything like Vitter’s conduct. Nor has it disciplined someone for conduct that occurred prior to joining the Senate. While it is possible the Senate could start doing so now and that CREW’s request could lead to an adjudicatory review, I wouldn’t bet on it. Sure, one might argue that conduct like Vitter’s brings disrepute upon the Senate as an institution. However, if the Ethics Committee were to begin investigating everyone who has ever engaged in similar conduct in their private lives, the disrepute that might result from the spectacle of such investigations could be even greater.

C. Simon Davidson is an attorney in the Washington, D.C., office of McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions are not confidential and do not create any attorney-client relationship.