Wednesday, January 10, 2007

Congressional Ethics Reform, Good in Theory, but be Wary of the Pitfalls

It always saddens me when politics, pure raw politics, overtakes good common sense and threatens the integrity of our most treasured government institutions. My latest screed after a long, mostly work-related hiatus from the blog is against the proposed Office of Public Integrity. A proposal so incredibly stupid that its popularity can only be explained by the overwhelming misunderstanding of Congress and the way it works by the general public combined with the general apathy and low regard that many, if not most, people hold politicians, especially Members of Congress.

Okay, so it occurs to me that many might not know what I’m talking about, so here’s the brief background. In the wake of so-called “congressional scandals” involving people like Randy “Duke” Cunningham, Robert Ney, William Jefferson, Tom DeLay (to a much lesser extent), Conrad Burns, and Jack Abramoff, there has been a heightened sensitivity around Capitol Hill to “corruption,” broadly defined. As a result, Democrats across the country campaigned on “the culture of corruption” to, depending on who you ask, varying degrees of success. These campaigns promised, among other things, to “clean up Congress” and rid the institution of the corrupting influences of lobbyists and the ever-dreaded “special interests.” One of the major proposals, albeit one defeated by the Senate late during the last Congress, is the creation of the Office of Public Integrity (OPI). OPI, according to most versions I’ve seen or read about, would be a legislative branch office with members appointed by the congressional leadership consisting of former members, former staffers, retired judges, and other public figures. OPI would have responsibility for conducting oversight of lobbying activates and “ethics” violations by Members. Presumably, thought its far from clear, OPI would be able to make and enforce some rules with respect to ethics and lobbying issues. It appears that OPI wouldn’t be able to directly punish or sanction violations of House or Senate rules -- though it may be able to punish for violations of its own rules and regulations -- but rather would report violations to the House and Senate Ethics Committees who would then take disciplinary actions as warranted. This outside oversight body, according to supporters, would ensure objectivity, non-partisanship, and stronger enforcement over the rules, procedures, and ethics of government.

Politically, ideas like OPI are precisely how Congress dupes the public by making it look like they are doing something without actually doing anything. On its face it doesn’t sound bad at all. Bring in a bunch of outsiders to enforce the rules Congress won’t or can’t enforce upon itself. Sounds great, right? Which is probably why such an idea enjoys so much public support I fear it might actually become law. Hence my opening salvo, politics, raw politics are going to drive the creation of a stupid idea that I fear will do far more harm than good to the institution, and above all might in fact be unconstitutional.

I know what you’re thinking; slow down there Mouldfan, unconstitutional, that’s a bold claim, which we know you don’t throw around lightly. How do you get there? It’s actually simpler than you might think, but it involves portions of the Constitution that don’t get nearly the attention they deserve. First, one has to examine Congress’s ability to create such a legislative branch office, like OPI. Power to do this stems from Article 1, Section 5, which states that “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.” However, this provision is not unlimited. The question becomes can Congress delegate its constitutional power to make its own rules and punish members to an outside group of non-members? The answer is I’m not sure. The only Supreme Court case that we have even close to on point is United States v. Nixon, 506 U.S. 224 (1993) -- that’s Judge Walter Nixon, not President Nixon. Nixon involved an analogous delegation of authority by the Senate to a select committee for the purposes of hearing evidence regarding the impeachment of two federal judges. Specifically, the impeached judges challenged the Senate’s procedure under Rule XI of the “Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials,” which authorizes the Senate to create a select committee to hear their trials and provide recommendations to the full Senate who would then vote on the conviction or acquittal.

Judge Nixon argued that the use of a select committee to hear the evidence and witness testimony of his impeachment violated the Senate’s constitutional duty to “try” all impeachments. According to Judge Nixon, anything short of a trial before the full Senate was unconstitutional and, therefore, required reversal and a reinstatement of his judicial salary. The Court held the issue to be a non-justiciable political question. Chief Justice Rehnquist, writing for the Court, based this conclusion upon the fact that the impeachment proceedings were textually committed in the Constitution to the Legislative Branch. In addition, the Court found the “lack of finality and the difficulty in fashioning relief counsel[led] against justiciability.” According to the majority, to open “the door of judicial review to the procedures used by the Senate in trying impeachments would ‘expose the political life of the country to months, or perhaps years, of chaos.’” The Court found that the word “try” in the Impeachment Clause did not “provide an identifiable textual limit on the authority which is committed to the Senate.”

Nixon thus stands for the proposition that Congress may exercise its rulemaking authority with little to no interference from the Courts. However, in Nixon, the delegation of authority was from the full Senate to a select committee of Senators. There is nothing in the opinion that suggests the ability to delegate constitutional powers to non-members, even former members. True, Congress can delegate its powers to other government agencies and institutions, but even that is potentially distinguishable as the clause in question also provides the Congress with the sole, exclusive means to punish Members for rules violations (of course criminal or civil law violations can be punished by the Justice Department or other third parties, but here we’re only concerned with internal Congressional rules).

But wait, I’m not done. There’s another serious concern with an OPI having investigatory authority over Members. That’s the Speech or Debate Clause, which is found at Art. I, sec. 6 and states that “for any speech or debate in either House, [Members] shall not be questioned in any other place.” This clause provides an “absolute” privilege against disclosure or testimony about “legislative acts,” which likely would encompass a good deal of the types of inquiries an OPI investigation would deal with. Turning over such powers to an outside group will pit the OPI against the Congress’s constitutional ability to protect and defend its own duties and prerogatives. While this may not seem serious, it in fact is deadly serious to members and staff of the Congress. Similar, I suppose, to “executive privilege” (though I actually don’t like the analogy and think Speech or Debate is stronger than “executive privilege,” as it’s actually in the text of the Constitution and, therefore, absolute, as opposed to a judicially created qualified privilege) Speech or Debate is the only thing that protects Congress from intrusions from the other branches of government. Ethics committees are internal bodies for which the privilege does not apply as they are not “in any other place.” Arguably, an outside body, even if created by Congress, could be seen as “in any other place” thus making the privilege relevant. A blanket waiver by Congress of the privilege is one option to overcome this problem, but that, in my opinion, would weaken the privilege and set a dangerous precedent for future waivers, something that to date Congress has not done in any circumstance.

Bottom line is this, ethics and lobbying overhaul and increased enforcement is a good thing. But the OPI and proposals of it ilk are not and should be abandoned. There are many other ways of getting the policy of this politically popular proposal correct, lets hope that our Members see the light and choose one, for if they don’t I fear a tremendous long-term damage for nothing more than a short-term bump in the polls.


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