May 22, 2006 -- Roll Call Op-Ed: The House Ethics System Needs a Serious Overhaul
By Meredith McGehee

With one Member of Congress already in jail, another under indictment in his home state and two more under investigation by the Justice Department for corruption, the House ethics committee last week decided to spring into action and begin investigations. Coming after a long stalemate, the panel's action is notable, but it should not be seen as a real answer to the problems facing the Congressional ethics enforcement process.

Rep. Joel Hefley (R-Colo.) recently said that the problem with the House ethics committee is the people on the panel, not the process itself. Mr. Hefley, who was deposed as chairman of the committee after actually attempting to enforce House ethics rules, certainly has the scars to show for trying to make the ethics process work. Still, with all due respect to Mr. Hefley, he has it all wrong. The process is the problem, and if the recent "reforms" passed by both chambers are any guide, it won't be changing anytime soon.

Dozens of different Members have served on the Committee on Standards of Official Conduct over the years, but while the players have changed, the game remains the same. The "peer review" process that both the House and Senate have chosen to use since the 1960s to enforce the rules of conduct from beginning to end — as investigator, prosecutor, jury and judge — is not up to the task.

The meltdown of the ethics process over the 108th and 109th Congresses has been extreme, but the basic dysfunction is nothing new. In fact, the flaws in the Congressional ethics processes in the House and Senate have been evident since the 1980s, and efforts to "fix" the system have repeatedly fallen short.

The most serious problem has been an ethics process that gives first priority to protecting Congress' own. Even when action is taken, it takes too long, and the punishments are too weak. There have been instances in which the committees rose to the challenge — ABSCAM comes to mind — but all too often, the ethics committees' actions can be fairly characterized as too little, too late.

The notable (and rare) successful ethics investigations in both the House and Senate have had one common denominator: They have been led by outside counsels.

In the late 1980s, the "Keating Five" investigation was headed up by outside counsel Robert Bennett. The investigation of former Speaker Jim Wright (D-Texas) was undertaken by the politically ambitious Richard Phelan. In the 1990s, outside counsel James Cole headed the investigation into whether former Speaker Newt Gingrich (R-Ga.) had inappropriately used a tax-exempt charity's money and lied to investigators.

But rather than build confidence in the process, these prosecutions revealed the cracks in the system. The cracks were so evident by 1997 that shortly after the Gingrich matter came to a close, the bipartisan House leadership appointed a House Ethics Reform Task Force to review a process that some viewed as out of control.

The result of the task force's work was not an overhaul. Instead, the proffered "reform" was to further insulate the process, in part by shutting off the possibility of ethics complaints by anyone other than a Member himself.

After the task force's recommendations were accepted, the House Democratic and Republican leadership reached an informal "ethics truce" that lasted almost a decade. The House ethics committee over this period became practically inert, and the Senate ethics process went under the radar, relying on the hope that ethically challenged Senators would either lose elections or, like Robert Torricelli (D-N.J.), leave office.

Woe to the ethics committee chairman who decided to do something. In 2004, Hefley oversaw three admonishments of then-Majority Leader Tom DeLay (R-Texas). Even these slaps on the wrist were seen by House leadership as unacceptable. So Hefley was ousted as chairman of the ethics committee by Speaker Dennis Hastert (R-Ill.), and several other committee members who had agreed to the DeLay "punishment" also were removed.

The problems facing the House and Senate ethics committees — their record of inaction or fecklessness — cannot be fixed by shuffling committee members. We cannot expect a different tune to come from the same broken record.

The way to fix the Congressional ethics dilemma is to accept that a process that relies on self-policing from beginning to end is fundamentally flawed. Congress should create an office within the legislative branch that is responsible for receiving and investigating allegations of wrongdoing, and making recommendations for resolving those allegations. The office could be headed by a single administrator, similar to the Office of Government Ethics in the executive branch. If the office decided that a complaint was frivolous or unfounded, it would dismiss the complaint, and it could do so with greater credibility because of its autonomy.

Such an office was offered as an alternative during the recent lobbying reform debate by Sens. Susan Collins (R-Maine) and Joe Lieberman (D-Conn.) in the Senate and by Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.) in the House. It was rejected in the Senate, however, and the House Republican leadership refused to even allow it a floor vote. Equally disappointing, House Minority Leader Nancy Pelosi (D-Calif.), who has railed about the supposed "culture of corruption," pointedly refused to endorse it.

A recent Gallup poll found that 83 percent of Americans see Congressional corruption as a serious problem. That percentage will not be lowered by the absurdly delayed investigations launched last week by the House ethics committee. The nation is paying attention, and Congress must act to restore the confidence of the people. The critical step to success is to change the Congressional enforcement process.

Meredith McGehee is the policy director of the Campaign Legal Center and also heads McGehee Strategies, a public interest consulting business.