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Weaponized Ethics

House Speaker Paul Ryan
photo by Gage Skidmore

Since the start of the Republic, each house of Congress has been responsible for admitting and disciplining its own members according to its own rules. It is a fundamental part of the separation of powers.

Of course, members are also subject to the laws of the land, which are enforced through the executive branch, and it has not been uncommon for legislators to be prosecuted for corruption.

The House created its “independent” ethics board in 2008, partly in reaction to and partly in celebration of the Democrats’ taking control of the chamber from the GOP after the scandals that were linked to Tom DeLay. The former House majority leader was convicted of election law violations, though his conviction was subsequently overturned. The Office of Congressional Ethics is run by an eight-person board of directors, whose members cannot be legislators or federal government employees. At the end of the office’s review, the board may decline further review or refer the matter to the House Ethics Committee.

A case of outright corruption can, and should, be referred to prosecutors. The House Ethics Committee is ordinarily responsible for handling matters that may violate House rules but which don’t rise to the level of crimes. How the House chooses to handle these matters is up to the House. The Senate never followed the House’s lead in establishing an outside panel such as the Office of Congressional Ethics. While self-appointed watchdog groups have called for such a move, I am not aware that there were any accusations by House Minority Leader Nancy Pelosi, other Democrats or the more liberal portions of the media that the Senate was being soft on ethics enforcement while the chamber was under Harry Reid’s leadership.

Yet the outcry against Republicans’ proposal to change how the Office of Congressional Ethics functions was both immediate and loud. Pelosi issued a statement Monday night condemning the move, saying, “Evidently, ethics are the first casualty of the new Republican Congress.” House Speaker Paul Ryan also criticized the proposed changes, as did President-elect Donald Trump.

House Republicans voted Monday night to approve an amendment to the set of new House rules slated for a vote the following day. The amendment would have placed the ethics board under the oversight of the House Ethics Committee, changed how much information about reviews could be made public and forbidden reviews triggered by anonymous complaints.

If a doctor, or a lawyer, or a financial planner is subject to an ethics complaint, most professional bodies do not disclose the complaint until after some initial investigation has at least found it warranted and the subject has been given a chance to respond. This protects innocent practitioners from significant professional damage. Anonymous complaints often are disregarded, in part because they are hard to verify. Besides, why make an anonymous ethics complaint at all? If someone is legally corrupt, prosecutors will be glad to accept an anonymous tip. Most of the changes the House GOP proposed would have made the House system more like those that apply in other professions. One can agree or disagree, but the fate of the Republic hardly hangs in the balance. Remember, the Senate still does not have any corresponding outside panel at all.

Regardless, the pushback was significant enough that House Republicans stripped the amendment from the rule package by voice vote the next day. They may take another run at changing the board’s rules later this term, as Rep. Tom Cole, R-Okla., suggested. “I think people just did not want this story on opening day,” Cole told Bloomberg. Between Trump’s public criticism and significant pushback from constituents, the changes are at least shelved for the time being.

“Ethics” complaints, of varying significance and validity, have been a political weapon wielded by both parties for the past several decades. In the name of “transparency,” the 2008 House reforms allow the outside panel to be weaponized in just this manner. In the end, however, the final arbiters are the voters and, in the more serious cases, the courts.

Meanwhile, what is ethical or not is a pretty subjective thing. Is it ethical for a minority party to hijack a chamber, physically force a suspension of its business and violate agreed-upon rules for conduct (including the use of cameras) on the chamber floor? Or do Democrats now believe that democracy is synonymous with mob rule?

It seems that way, given the reaction to rules Ryan proposed limiting such behavior. Last June, Democrats seized the floor and refused to yield after Ryan refused to allow a gun-control vote. Republicans shut down the chamber, including C-SPAN coverage, and Democrats subsequently violated House rules in order to live-stream the ongoing protest using their phones. Ryan has now proposed a fine for shooting video or taking photos of the chamber floor in violations of its rules.

There are, admittedly, some flaws in the measures that Ryan suggested. Some observers have found it unfair that he would delegate discipline for future infractions to the sergeant-at-arms, a nonpartisan staff post, rather than have the full House vote to punish violators. That is a fair criticism. But all House members ought to be on notice that the chamber belongs to the representatives elected by the voters collectively, and that any future effort to bring a lawless “Occupy” movement to the place in Washington where law, order and process are most important will be dealt with promptly and firmly.

If Democrats want to improve ethical conduct in the House, they can start by respecting the decisions of fellow citizens who have placed their party in the role of what we used to call the loyal opposition. It is the opposition’s responsibility to oppose, of course, but also to be loyal – especially to the voters and to their institution.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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