Congressional Ethics: An Evolve or Die Proposition

Posted September 14, 2007 at 2:51pm

In the late 1960s, a series of scandals demonstrated obvious corruption by government officials. The Congressional Record shows House and Senate leaders understood that the American people had concluded Members were using their official positions and the legislative process for personal gain, partisan advantage and the protection of special interest groups that provided political contributions, gifts and other benefits. Those leaders also knew that failing to restore the public’s faith in the integrity of the legislative process would result in citizens less willing — and, as Thomas Jefferson described in the Declaration of Independence, eventually unwilling — to obey laws enacted through what they believed to be a corrupt process.

In an effort to reclaim the public’s faith, Congress recommitted itself to the fundamental principle of public service ethics by declaring that every Member serves as a trustee of the public interest. Both the House and Senate adopted ethics codes with rules reflecting, however imperfectly, that principle, and both created ethics committees to investigate allegations of improper conduct.

Congressional leaders, understanding that neither laws nor codes could fully describe or prohibit all unethical conduct (conduct inconsistent with the underlying principle that Members were required to act as trustees of the public interest), gave the committees authority to investigate unethical conduct regardless of whether it violated any specific law or rule.

Like the drafters of the Constitution, Congressional leaders hoped — perhaps naively — that, as public servants, Members would place their commitment to act as trustees of the public interest above personal gain and partisan advantage. They also hoped the Members’ fulfillment of their commitment along with new codes and committees would begin to restore the people’s faith by ensuring that the legislative process was being used only to pursue justice and to achieve the public interest and the common good.

Nearly 40 years later, the reputation of the ethics committees is so low that House Minority Leader John Boehner (R-Ohio) recently was unwilling to even refer to the committee an assertion of improper conduct. He described the committee as a “black hole” where allegations against House Members are sent to die. His description is consistent with the views of 84 percent of the American people who, according to a poll conducted by the Los Angeles Times, believe that both the House and Senate should do away with their ethics committees and find a more effective and trustworthy way to deal with unethical conduct.

Clearly, the ethics committees have failed to achieve the sole task for which they were created 40 years ago. Instead of encouraging the public’s trust, they have further diminished the public’s faith in Congressional integrity. They have made themselves and Congress objects of ridicule and scorn.

The committees must be replaced. The ethics system must evolve. If it does not, public trust in the integrity of the legislative process will die. The death of public trust is not in the national interest. Nor is supporting a system of ethics discredited and distrusted by the people in the long-term interest of those who enjoy serving in the House or Senate and want to be re-elected.

I served in the U.S. government for more than 22 years: eight years with the House and 12 with the Senate, including six as the Senate Ethics Committee counsel and six as its staff director and chief counsel. I also served two years in the Commerce Department’s ethics division. Based on my experience in public service and in public service ethics, I have for some time proposed two changes to the current Congressional ethics system: a new oath of office for Members and the establishment of independent nonpartisan Offices of Public Integrity in both the House and Senate.

The new oath: “I will faithfully execute the responsibilities of the office to which I have been elected without regard to personal gain or partisan advantage. I will uphold the Constitution of the United States and make decisions and take actions based only on what I believe to be in the public interest, the pursuit of justice, and the common good.” This oath will focus the Member’s attention on the responsibilities of his or her office; reinforce the fundamental principle of public service ethics; and provide a clear statement of the standard of conduct against which the American people have always judged their public officials.

The new independent nonpartisan Offices of Public Integrity would assume the authority and responsibilities of the current ethics committees. The head of each office would be nonpartisan and would hold the position for a fixed term. Additionally, the offices would be responsible for executing subpoenas or search warrants such as that pursuant to which the FBI entered Rep. William Jefferson’s (D-La.) Capitol Hill office.

In furtherance of that responsibility, the appropriate office would secure relevant materials, segregating those protected under the Constitution’s Speech or Debate Clause from discovery by an entity outside the legislative branch. Because the Speech or Debate Clause protects the legislative process from an overreaching executive by protecting individual legislators, the Member whose actions are under scrutiny would have both the right to review any material the office decides to make available outside the institution and the ability to file with the courts a motion to enjoin the office from turning over any contested documents.

Because the offices would be part of the legislative branch, information suggesting illegal or unethical conduct, but protected by the Speech or Debate Clause from use by an entity outside the legislative branch, could still be used in any inquiry undertaken by the office. The offices also would have subpoena power as well as authority to hold hearings and take testimony.

Although the independent, nonpartisan Offices of Public Integrity would investigate allegations of improper conduct, the Constitution requires that only the full House or Senate may discipline Members. Thus, at the conclusion of its inquiry, the office would submit a written report and recommendations to the House or Senate for institutional action.

If the offices fulfill their obligations, they eventually will overcome the significant damage caused by the ethics committees. These proposals will eliminate unconstitutional executive branch invasions of Congressional offices, remind Members of their responsibilities as trustees of the public interest, and encourage the American people to have faith that Congressional ethics is no longer an oxymoron.

Wilson R. Abney is senior partner of Ethics Counts LLC, a consulting firm based in Aurora, Colo., working with public and private institutions, the media, public officials and candidates for public office to promote public service ethics and government accountability.