``The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust . . . .''
-- James Madison, The Federalist Papers, No. 57.
Members of Congress, like other citizens in the United States, are subject to investigation and prosecution for criminal misconduct and other statutory violations through the criminal justice system, initiated by Federal, State, or local public prosecutors, and conducted through the courts. Violations of ``ethical norms'' and principles of ethical behavior by a Member, however, are enforced, principally, at the ballot box by the Member's constituents who choose their representatives in Congress, but are also enforced internally in each House of Congress by other Members of the House or the Senate.
The enforcement of Federal statutory laws, including criminal statutes, is vested in the President of the United States by the United States Constitution at Article I, Section 1. Criminal prosecutions for Federal crimes are under the authority of the Attorney General, appointed by the President as head of the Justice Department in the executive branch.1 Members of Congress have no general immunity from criminal prosecutions,2 and are subject to prosecution for violations of Federal criminal laws by the United States Attorneys of the Department of Justice.3
Unlike criminal laws or other Federal statutory provisions, however, there exist broad ethical standards, codes of conduct or behavior, and general principles of morality, written or unwritten, by which a Member of Congress may also be judged. This chapter explores these ethical standards and their enforcement in the Congress.
SOURCES OF AUTHORITY AND POWER OF SELF-DISCIPLINE
Each House of Congress has been given in the United States Constitution express authority and responsibility for decisions about the qualifications, elections, and the conduct of its own Members. The Constitution expressly instructs that each House of Congress ``shall be the Judge of the Elections, Returns, and Qualifications of its own Members;''4 and further provides that each House of Congress may determine its own rules of proceedings, may ``punish its Members for disorderly Behavior,'' and may, ``with the Concurrence of two-thirds, expel a Member.''5
The direction to discipline or ``punish'' its own Members, and the authority to expel, relate directly to and inform the right ``recognized by common parliamentary law'' of self-preservation of the institutional integrity of the legislature and its proceedings.6 Even if not granted expressly within a constitution or similar document, authorities have contended that the right to expel and to discipline members of a legislative body is an inherent right of that institution. This disciplinary authority has been described as one ``naturally and even necessarily incidental to . . . legislative bodies; which, without such power, could not exist honorably, and fulfill the object of their creation.''7
The power and practice of congressional self-discipline for legislative misconduct is one which is, to some extent, compelled by the structure of our Federal government. In formulating the new Federal government, the Framers of the Constitution were determined, for reasons of the balance of powers and of ``checks and balances'' within the governmental system, to have three independent and co-equal branches of government.8 As part of the assurance of an independent legislature, one not fettered nor intimidated by a powerful law-enforcing executive, the Constitution expressly granted a limited immunity to Members of Congress from prosecution when the conduct involved official legislative activities.9 The so-called ``speech or debate'' clause immunity provides that a Member ``shall not be questioned in any other place'' concerning official legislative conduct.10 Since a Member may not be questioned ``in any other place'' regarding certain conduct in the legislative process, this speech or debate immunity provides a cogent and practical reason for the countervailing authority and responsibility within the Constitution for congressional self-discipline and the necessity for internal enforcement of legislative standards of conduct.
The practice of internal discipline within our national legislature reflected British parliamentary experience, as did the recognition by the Framers of the need to protect the independence and privileges of the legislature from undue influence or intimidation from the executive. In parliamentary practice, the House of Commons has had the right to discipline or ``punish its own Members for disorderly conduct'' and for other contempts or breaches of the privileges of the House.11 This authority was concurrent with that of punishing contempt by those who are not Members, and sought to protect the integrity of the legislative institution, and its privileges and functions.12
The constitutional authority for the legislative bodies in Congress to discipline their own Members did not appear to be accompanied by any significant debate in the Constitutional Convention, save for the amendment by James Madison to require a two-thirds majority to expel a Member so that such ``an important right'' could not be exercised ``by a bare majority'' and thus could be a power which majority factions might dangerously abuse.13 Madison and Hamilton had earlier expressed concern, with respect to the issue of ``qualifications'' of Members, that if the institution of Congress itself could limit membership to those that it deemed to be ``fit'' to serve in the legislature, the institution might usurp from the people the power to choose whom they wished to represent them in Congress.14 The authority to expel stated in the Constitution was not, however, couched with any additional limitations other than the requirement for a super-majority of two-thirds.
In punishing Members by means other than expulsion, the constitutional provision originally drafted in the Committee on Detail provided simply the authority for each House to ``punish,'' but as finally reported added the modifier phrase that each House may punish for ``disorderly behavior.'' There had in the past been questions raised about whether the power to punish for ``disorderly behavior'' was restricted only to conduct in Congress, that is, behavior which directly disrupted the proceedings and functions of the institution itself. But early precedents and discussions indicated clearly that of Congress the power to discipline was not narrowly focused on merely internal conduct within the institution, nor was congressional authority limited merely to addressing misconduct or disorderly behavior which was not otherwise considered as a criminal or civil offense.15 In his historic work on the Constitution, Justice Joseph Story noted in 1833 that congressional disciplinary authority under this clause of the Constitution is apparently unqualified as to ``the time, place or nature of the offense'' for which one is to be punished, similar to the British parliamentary practice.16
Later cases and precedents within the House and Senate have affirmed the broad application of each House's authority to ``punish'' misconduct by means other than expulsion. In the censure of Senator Joseph McCarthy of Wisconsin, the Select Committee to Study the Censure Charges in the 83d Congress reported to the Senate: ``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.''17 The House of Representatives has held a similar view. In the report on Representative Adam Clayton Powell from the House Judiciary Committee, the Committee noted that: ``Nor is the conduct for which punishment may be imposed limited to acts relating to the Member's official duties.''18
INTERNAL ETHICS ENFORCEMENT GENERALLY
Unlike the enforcement of criminal laws, or even civil litigation to resolve competing legal claims, ethics procedures and the enforcement of general standards of ethical conduct or professional responsibilities are, by their nature, generally collegial exercises, where peers must judge the conduct of those within their own group, profession, or own organization. Professional boards of review and panels for professional responsibility, discipline, and review are somewhat common for many occupations and professions in the private sector.
In the public sector, ethics enforcement is, to a large extent, similarly an internal, in-house procedure. The executive agencies of the Federal Government, for example, are instructed to appoint an official of the agency as the Designated Agency Ethics Officer to provide the front-line interpretations and instructions to officers and employees of the agency concerning standards of ethical conduct. Although there is now a centralized agency which provides coordination of ethics interpretations and standards, that agency, the Office of Government Ethics, does not generally involve itself in day-to-day enforcement of ethics of individual employees within an agency. Rather, the regulations on standards of conduct, promulgated by each executive agency in line with presidential executive orders and regulations of the Office of Government Ethics, are enforced internally by the respective agency.19 The courts have recognized that enforcement of ethical standards of conduct in the Federal Government is an exercise of discretion, applying often subjective terms and general ethical principles and concepts, and is an area where the organization or institution itself has the experience, expertise, and familiarity with the acceptable standards of conduct, mores, and nature of the responsibilities of the official.20
In the judicial branch of the Federal Government, a judicial review panel or committee, made up of sitting Federal judges, reviews conduct and disciplinary complaints concerning members of the Federal judiciary.21 The review committee may forward a report on a particular matter to the judicial council in that circuit for appropriate action, including censure, reprimand, temporary suspension of assigning cases to that judge, request to the judge to retire, and/or referral of a matter to the House of Representatives for possible impeachment proceedings.22
INTERNAL ETHICS ENFORCEMENT IN CONGRESS
Somewhat similar to officials and officers in the executive and judicial branches of government, Members of Congress are subject to an ethics review and possible disciplinary proceedings by their peers in their respective House of Congress. As noted, the authority for internal discipline of misconduct in Congress derives directly from the Constitution, in Article I, Section 5, which gives each House of Congress the authority to ``punish its Members'' for misconduct and to expel a Member by a two-thirds vote.
Prior to the 1960s there was no full-time or standing ethics committee in either the House or the Senate. Complaints of misconduct or behavior abusive to or disruptive of the proceedings and privileges of either House of Congress were generally referred to an ad hoc special or select committee in the House or Senate for investigations, determinations, and recommendations. A matter concerning misconduct could also have been referred to a standing committee which normally had jurisdiction in other areas, such as the committees on the judiciary, or the rules or administration committees. There was no specific set of rules for proceedings in disciplinary matters, nor was there a written code of conduct or a written set of ethics rules.
The Senate in 1964, and the House in 1967, established for the first time standing committees on ethics to which complaints of misconduct and resolutions for disciplinary action would be referred, and where Members and employees might also seek advice and opinions on matters of ethical standards. The permanent Senate ethics committee, then known as the Select Committee on Standards and Conduct, was created by S. Res. 338, in the 88th Congress, by the adoption of a substitute proposal of Senator John Sherman Cooper of Kentucky, on July 24, 1964. Events arising out of the Bobby Baker investigation in the Senate by the Senate Rules Committee had propelled the matter of a standing committee for ethics in the Senate to full Senate consideration. In 1977 the Senate Select Committee on Ethics was established to replace the former Standards and Conduct Committee.
The House Committee on Standards of Official Conduct was created when the House adopted H. Res. 418, 90th Congress, on April 13, 1967. During hearings before the Joint Committee on the Organization of Congress in 1965, and in its final report, a recommendation was made to establish a permanent House committee for standards and conduct, similar to the one established in the Senate in 1964.23 Shortly after the Joint Committee's report, and following highly publicized allegations of official misconduct by Representative Adam Clayton Powell, a House Select Committee on Standards and Conduct was established during the final days of the 89th Congress.24 In the 90th Congress, H. Res. 418 established a new Committee on Standards of Official Conduct. That Committee recommended changes in the House rules dealing with standards of ethical conduct and recommended its continuance as a permanent standing committee.25 Based on that report, H. Res. 1099 was reported from the House Rules Committee containing much of the substance of the Standards Committee report, including making permanent the House Committee on Standards of Official Conduct, and was adopted by the House on April 3, 1968.
In 1968 a written code of ethical conduct was for the first time adopted in the House and in the Senate. Prior to that time Members were judged almost exclusively on unwritten ethical norms and standards of conduct and behavior.26 The ethics codes in the House and Senate have been amended, updated, and tightened on several occasions since 1968, most notably in 1977, and again in the Ethics Reform Act of 1989.
The standing committees on ethics in the House and the Senate were intended to be permanent committees to develop expertise and precedents in the area of legislative ethics, conduct, and disciplinary actions. Unlike other legislative committees in the House and Senate, the membership of the House Standards and Senate Ethics committees are equally divided between majority and minority party members to require and assure at least some bipartisanship in the consideration of issues relating to ethics and standards of conduct.
Disciplinary proceedings in the committees now follow detailed procedural rules, and if warranted, evidence is eventually taken in formal hearings presided over by a panel of Members of the Committee who are sitting Members of the House or the Senate, respectively. Any formal disciplinary action by the institution, such as a censure or expulsion and, in the House of Representatives, a reprimand, is recommended by the House or Senate ethics committee to the respective body, and there voted upon by the full House or Senate. Both the House and Senate Committees have also issued letters of reproval or reprimand on their own accord to Members, but this is not considered a formal disciplinary action by the entire institution such as a censure.
In the House the disciplinary procedure since 1990 has been ``bifurcated,'' wherein a subcommittee of Members of the standing committee will review the initial charges and will conduct the preliminary investigations. If more formal ethics charges are to be heard (upon the issuance of a ``Statement of Alleged Violations'), then another subcommittee made of the remaining Members of the House Committee on Standards of Official Conduct hears the evidence and determines whether the charges are proven. The full Committee then may make disciplinary recommendations to the membership of the House.
DISCIPLINARY ACTIONS AND INTERNAL ETHICS ENFORCEMENT
Actual disciplinary actions by the full Senate or House have, in fact, been relatively rare. The Senate has adopted censure motions only eight times, censuring nine Senators, in its history, and has not expelled a Member of the Senate since the Civil War. (Fourteen Senators were expelled during the Civil War for disloyalty to the Union, and one other Senator expelled in 1797, also for disloyal conduct). The House has censured 22 Members (21 Representatives and one Delegate), and ``reprimanded'' seven others, while expelling only four of its Members in its history, three during the Civil War for disloyalty to the Union, and the most recent expulsion in 1980 after conviction for bribery in congressional office.
The low number of actual disciplinary actions may be attributable to some degree to the fact that many Members, facing such disciplinary action, prefer to resign from Congress rather than to pursue the matter. In other instances, the voters have either not renominated the Member in a primary, or voted the individual out of office in the general election before disciplinary action is completed.
The regular electoral review of a Member of Congress is a significant factor in the theory and practice of congressional discipline. It also distinguishes disciplinary procedures in the House and Senate from disciplinary procedures of government officials who are appointed with indefinite tenure, such as those in the judicial and executive branches who never have to face the judgment of the public by standing for regular election or reelection to office. In framing the Constitution, as was discussed above, great deference was paid to the sanctity of the choice of the electorate as to whom the people wished to send to Washington to represent them in Congress,27 and great weight was given to keeping the Members of the legislature ``virtuous'' by short terms of office and the ``restraint of frequent elections.''28
On the other hand, however, it is recognized that discipline cannot be left entirely to the public through the electoral process, since the institution of Congress itself, like all legislatures, has a vital interest in self-preservation and in the integrity of the institution and its proceedings.29 Thus, each House of Congress was given the express authority in the Constitution for such self-discipline.
The balance between controlling the conduct of individual Members through the electoral process and honoring the sanctity of the expression of the will of the people, on the one hand, and the institutional needs of the House or the Senate itself to preserve the integrity of the institution and its proceedings, on the other, is one which must be carefully maintained in internal ethics enforcement.30
Many observers argue, however, that it is not the reverence for and the sanctity of the electoral process that has principally restrained Congress in self-enforcement of conduct standards and ethical principles. It has been noted on many occasions that the enforcement of ethical standards against one's peers, and disciplining individuals that one must work with, is a difficult and uncomfortable task. Some critics of congressional ethics procedures have argued that the inherent and structural ``conflicts'' in congressional self-discipline are the causes of what is seen to be an apparent reticence of Congress to enforce ethical standards against its own Members. Members must cooperate to a large extent with one another in the legislative process, and thus there is a natural reticence for Members to do something detrimental to one another. Many Members are now reluctant to serve on an ethics committee, where the proceedings may take a great amount of one's time, and where the Member may be subject to criticisms from the public if perceived as being too lenient, or from congressional colleagues if perceived as being too harsh.
Several reforms have thus been suggested to mitigate the inherent conflict in ethics enforcement. The proposals include a citizen advisory committee to advise the committees of Congress on citizen reaction to ethical complaints, as well as an ``independent'' ethics panel, made up of non-Members, which would actually be empowered to receive and subpoena evidence, take testimony under oath, and make disciplinary recommendations concerning complaints of ethical conduct of Members of the House or the Senate.
SUMMARY OF HEARINGS ON ETHICS
The Joint Committee on the Organization of Congress held two hearings on the ethics process on February 23 and 25, 1993. The committee received testimony from the former leadership of the House Committee on Standards of Official Conduct, a former Chairman of the Senate Ethics Committee, four other Members of Congress, and four academic experts.
Most witnesses who testified believed that ethics reform should be a priority for the committee, but there were differing opinions of what constituted reform. The most discussed reform was including non-Members as a part of the process. Other changes proposed ranged from updating the Senate ethics manual, mandating ethics training for Members and staff, utilizing the same set of ethical standards in both Chambers, and streamlining the steps of an ethics investigation.
The House of Representatives has a bifurcated ethics process, in which the Committee on Standards of Official Conduct divides into two subcommittees to handle the preliminary inquiry and adjudicative functions, and the whole committee reassembles to recommend punishment. The first step in this process is determining whether the complaint merits further inquiry. The following step is a preliminary inquiry to see if there is reason to believe a violation has occurred. If this violation was determined to have occurred, then the next step is proving these charges, and the final step is recommending punishment. This system is supposed to promote fairness to the accused by not having the same group act as grand jury, jury, and judge. A case has not yet been brought under the new House system.
The Senate follows a similar process, but the significant difference is that its system is not bifurcated. The first step is a preliminary inquiry to see whether there is enough evidence to merit an investigation. If there is sufficient evidence, the second step is an initial inquiry -- investigating the charges. The third step is the investigation, which includes hearings. The final two steps are proving the charges and recommending punishment, if necessary. Some witnesses wanted the Senate to move to a bifurcated process. Former Senator Warren Rudman stated, ``. . . It is probably unfair to Members of the committee as well as to Members who are accused to have the matters investigated and then heard by the same Senators.''31
The Constitution gives Members of Congress the responsibility for disciplining their colleagues. While no witnesses advocated giving the entire responsibility to a group of outsiders, some wanted non-Members to be able to investigate charges and recommend punishment. Representative Robert Andrews, when testifying in favor of an external ethics commission, said, ``Our system purports to conduct review of ethics by our peers, but I think we misdefine what it means to be a peer. Ultimately, our peers are not fellow Representatives or Senators, ultimately our peers are ordinary citizens.''32 Conversely, other witnesses wanted ethics proceedings to be conducted only by Members. As former Senator Warren Rudman testified, ``I believe that the Constitution, when it says that we ought to be the judge of our own Members, means precisely what it says.''33 A former Chairman of the Standards of Official Conduct Committee, Representative Louis Stokes was ``troubled by calls for further procedural reforms, which are based on the notion that the Ethics Committee has not done its job or has not done it properly.''34
The main reason for bringing in non-Members to the ethics process was summarized by Rutgers University professor Alan Rosenthal when he stated, ``. . . . Members are reluctant to serve on such bodies, and have little incentive to pursue any type of ethics agenda. Second, Members who are pressed into service naturally are reluctant to punish colleagues with whom they have empathy and whose support they undoubtedly will need on one matter or another.''35 Numerous witnesses said that using outsiders would solve the problem of Members not having sufficient time to serve on the Ethics Committee.
One of the concerns of bringing in outsiders was typified when Representative Louis Stokes said, ``Why would an outside group not accountable to other Members or to the voters do a better job of deciding hard cases or of convincing the public of the wisdom of their decisions?''36 Another concern is that outsiders may not understand the norms of Congress; there are ``competing and often conflicting duties and obligations and roles that [m]Members play,''37 as former Counsel to the Senate Ethics Committee, John Saxon, noted. While some proposals for outside commissions call for using former Members who would understand the role of a Member, witnesses pointed out that they might be perceived as unable to objectively judge a former colleague.
Many of the witnesses wanted ethical standards to be detailed in an ethics manual. Senator Howell Heflin, former chairman of the Senate Ethics Committee, suggested having ``. . . . a continuing updating of the code of ethical conduct and that each one of the codes be annotated to the interpretative rulings that have been issued by the Ethics Committee''38 and Senator Trent Lott wanted ``. . . . guidelines as to, 'if you do this, or you don't do this,' then you may reach this standard of discredit or reflecting on the Senate.''39 While the House has the Office of Education and Advisory, which answers Members' ethical questions, ``one of the best things that we have come up with on the committee,''40 according to Representative James Hansen, former ranking Member of the House Standards Committee, there is not an equivalent body in the Senate. Although the staff of the Ethics Committee does answer questions of Senators and staff, it is not a formalized responsibility as it is in the House. Senator Heflin wanted ``uniformity of rules and interpretation of those rules between the House and Senate.''41 There was agreement that there should be mandatory ethics training for both House and Senate Members and staff. Senator Trent Lott echoed many other witnesses' concerns when he asked, ``Shouldn't we at least make sure that we know what the rules are and that our staff knows what the rules are?''42
Finally, there was a discussion of the length of the ethics process. While witnesses said that the rights of the accused must be protected by having a complete investigation, there was concern that the investigations take so long, and the accused has their ``trial'' in the media. Senator Richard Lugar said that in Senate proceedings, ``. . . . the preliminary steps are so arduous and time consuming and expensive in terms of legal costs, as well as the press coverage of each of these'' that the proceedings take the trappings of a trial.43There was discussion of streamlining steps in the Senate; in former Senator Warren Rudman's view, it takes ``two to three times as long as it should.''44 Representatives Stokes and Hansen argued that the procedures followed in the House were sound and the best possible for the accused; they did not think the process could be shortened.