FROM SUBJECT This Members Joint Committee on the Organization of Congress. memorandum is submitted in response to the Joint Committee's request, as discussed with the Joint Committee staff, for background and summary information on the issues of reforming the procedures in legislative ethics enforcement. Background The enforcement of legislative ethical standards and congressional codes of conduct, as opposed to federal statutory laws, are handled internally in each of House of Congress. The Constitution expressly authorizes and provides 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." Article I, Section 5, clause 2. History Prior to the 1960's, 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 was also referred at times 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 were 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 House in 1968, and the Senate in 1964, 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. In 1968, a written code of conduct was for the first time adopted in the House and in the Senate. The standing committees on ethics in the House and the Senate were intended to develop expertise and precedents in the area of legislative ethics, conduct, and disciplinary actions. 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. 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 makes disciplinary recommendations. Any formal disciplinary action, such as a censure or expulsion and, in the House, a reprimand, is recommended by the 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 institution. Proposals in Area A number of commentators and Members of Congress have criticized the congressional disciplinary procedures, noting the difficulties inherent in internal and collegial ethics enforcement. Several proposals have been made to amend the disciplinary procedures in the House and Senate to provide for some form of a panel, consisting of persons who are not sitting Members of the body, to hear evidence of alleged misconduct of Members, and make the recommendations for discipline, either to the full House or Senate directly, or to the standing ethics committee which would then report the matter to the full body. Some of the recent proposals in this area include: H. Res. 43, 103d Cong. (and H.Res. 465, 102d Cong.) Representative Weldon (and Representative Andrews) : Would establish Citizens' Commission on Congressional Ethics made up of 14 private citizens, 7 appointed by Speaker, 7 appointed by minority leader, with approval of House, of persons who are not former Members or former government employees, or have not been lobbyists, within five years. The Commission would hear evidence and make recommendations to the House Committee on Standards of Official Conduct on disciplinary matters of Members, officers and employees. S. Res. 190, 102d Cong. Senator Helms (and Senator Lott): Substitutes 6 private citizens for the six Members on the Senate Select Ethics Committee. Two of the citizens are to be retired Federal judges, two others former Senators. The members of the Select Committee would serve without compensation. S. Res. 221, 102d Cong. Senator Coats: Would establish an Independent Ethics Commission made up of 8 members, four appointed by the majority leader and four appointed by the minority leader. of the four appointed by each, one member would be a retired judge, one member a former Senator, and the other two private citizens not employed by the Federal Government. The Commission would review complaints and, if warranted, appoint an Independent Counsel to conduct a full investigation. The Independent Counsel would report directly to the Senate findings and recommendations for disciplinary action. Would abolish the Select Committee on Ethics and transfer its other function to the Senate Rules and Administration Committee. S. Res. 327, 102d Congress. Senator Bond: Would establish an H. Res. 526, 100th Cong., Representative DioGaurdi (and Representative Frank): Would establish a permanent Public Review Board to investigate alleged ethics or code violations by Members and staff, and after notice and hearing, may submit a recommendation for disciplinary action to the Committee on Standards of Official Conduct. Problems and Issues Critics of current congressional disciplinary proceedings have argued that the inherent and structural "conflicts" in congressional self-discipline are the causes of what is seen by some 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. Actual disciplinary actions by the full Senate or House have, in fact, been relatively rare. The Senate has "censured" only 8 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 (actually, 21 Members and 1 Delegate), and "reprimanded" 7 others, while expelling only 4 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 taken care of the matter by either not re-nominating the Member in a primary, or voting the individual out of office in the general election before disciplinary action is completed. Many commentators feel that for conduct which does not affect the proceedings of the institution itself, the voters, by way of the ballot box, are the proper judges of the conduct and fitness of the Member, and Congress should not interfere with that judgment. There has been some concern expressed about providing for an independent, non-Member commission for ethics, in that Congress will be abdicating a constitutional and institutional responsibility for self-protection. Although a difficult task, it is one assigned each House of Congress by the Constitution. There is also a fear that if non-Members more frequently recommend censures and/or reprimands, such actions may lose their importance and potency as a statement of strong congressional disapproval and "punishment". In sum, some of the problems and issues raised with the current practices in congressional self-discipline, and reasons for a more "independent" ethics commission, have been suggested to be: Perception by public that internal self-discipline presents inherent "conflicts" for Members who have difficulty judging their peers. Perception that a "club" atmosphere pervades in the House and Senate to protect a Member from strong disciplinary recommendations. Members of the Senate and the House are reluctant to serve on the Ethics Committees because of the large amount of time and attention that formal disciplinary hearings require. ● Members are reluctant to serve on the ethics committees because, regardless of what ethics recommendation might be made, the public perceives anything short of expulsion as only a minor penalty for a Member. Providing for a more independent examination of the evidence and the making of disciplinary recommendations may provide more appearance of impartiality in judging a Member's conduct. Some of the factors which may argue against having "independent" commissions involved in the congressional disciplinary process: Members of Congress may be seen as shirking their constitutional duty and their institutional responsibility to punish their own Members. Disciplinary action may be left in the hands of those who do not have the working knowledge and appreciation of the factors and realities of congressional life, service as a Member of Congress, and the currently accepted norms of ethical behavior in Congress. More frequent censures or, in the House, censures or reprimands, may dilute the impact of such actions taken by the institution. An independent commission may make ethics proceedings more cumbersome, adding another layer of procedure, and may make such proceedings overly legalistic and technical, as opposed to what may be a more summary, collegial exercise of peer discipline. Enforcement of congressional ethics may not be totally "independent" of Congress, or else "Speech or Debate clause" immunity issues may arise. |