Recently, Senator Robert Bennett expressed a sentiment that aptly summarizes my reaction to Josh Chafetz’s call to change ethics enforcement in Congress. “Washington is the only place I know where, when people break the law, our reaction is . . . [to] make the law tougher.” In recent years, several members of Congress have violated ethics rules, and a few have broken the law. Unlike Chafetz, however, I don’t view these events as evidence of a system in disrepair. Instead, they are proof of one that works. Like the fever that accompanies a virus, they are a sign that our body politic can heal itself.

In his Comment, Chafetz calls for a dose of new medicine when it comes to congressional ethics: an enforcement mechanism modeled on the British Parliamentary Commissioner for Standards. This Commissioner would be an independent counsel of sorts with the mandate to investigate, issue subpoenas, and publicize wrongdoing by members of Congress. Ultimately, the congressional ethics committees would retain the power to punish members. But, in all cases, the Commissioner must go public, creating pressure that will, according to Chafetz, strengthen enforcement and increase public confidence.

The proposal is hardly new. In the past two years, the United States Senate has twice rejected a proposal to create an Office of Public Integrity (OPI)–an office that would perform the same function as Chafetz’s Commissioner. A bipartisan group of Senators successfully opposed the measure, arguing that the ethics committees already serve as an effective way to enforce the ethics rules.

I worked for the Senate when it first rejected the OPI. At the time, I thought that the proposal would make ethics enforcement worse, not better. Though Chafetz gives the OPI a different name, he does little to alter my thinking. First, I fear that he has misdiagnosed the patient, proposing a solution to a problem that does not exist. Second, in my view, Chafetz’s Commissioner will do more to harm the ethics enforcement process than to help it.

I. The Diagnosis

At the core of Chafetz’s thesis is a simple premise: the rules governing the ethical conduct of members of Congress are “largely meaningless without a stronger enforcement mechanism.” I disagree. The ethics enforcement process is not perfect, but it is not in a state of complete disrepair. Recent history shows that Congress, the executive branch, and the voting public take ethical rules seriously.

Take, for example, the work done by Congress. Over the past twenty-five years, the Senate has moved to sanction eleven of its members. For three of them, the action led to the end of their careers. The House, too, has a solid record of sanctioning members. Action by the House Ethics Committee led to the resignation of Speaker Jim Wright in 1989 and marked the beginning of the end for Newt Gingrich. The congressional ethics committees train members on their obligations, provide confidential advice, and obtain compliance through the threat of publicity. For every member who has received a public sanction, there are many more who have worked with the committees to avoid missteps. The point is simple: Congress’ own internal systems are effective at identifying, deterring, and punishing offenders.

If the ethics committees do not act, others fill the gap. In the most serious cases, the Department of Justice (DOJ) prosecutes members who violate federal statutes. Unlike the British system on which Chafetz bases his proposal, in the United States, members of Congress can be and are investigated, tried, and convicted for violating the public trust. Such outside enforcement is essential to a healthy body politic. While Congress has fined and even expelled wayward members, such punishments alone are hardly adequate for violators like “Duke” Cunningham, the former Congressman who accepted $2.4 million in bribes. In such cases, DOJ is best suited to investigate wrongdoing.

So too, the public plays a role in policing Congress’s ethical standards. The 1994 and 2006 elections prove the point. In June 1994, forty-nine percent of Americans believed that Congress was more corrupt than it was during Watergate. In that year, the public gave control of Congress to a new party, ousting thirty-six incumbents. A similar mood permeated the 2006 election, with more than half of independents believing that their own member of Congress had taken a bribe. The result was the same: thirty-three incumbents lost and a new party gained control. In both cases, the result was more of a blunderbuss than a laser beam, as many of the ousted members were not involved in scandals. Nonetheless, voters showed that ethics mattered, and they took it upon themselves to clean house.

All of this–the congressional sanctions, the prosecutions, and the elections–is evidence of an enforcement system that works, not one in need of major surgery. Any diagnosis to the contrary is not completely accurate.

II. The Proposed Cure

Second, Chafetz proposes a cure that, in truth, is worse than the ethics disease itself. His proposal for a Commissioner of Standards would replace a system that works with one that is redundant, at best, and prone to partisanship and gridlock, at worst.

At best, the Commissioner will take on a job that is already being done by the staff of the ethics committees. The Senate Ethics Committee staff already has the power to open investigations, consider public complaints, and issue subpoenas. What Chafetz casts as “independence” is just a new gloss on existing structural protections. The staff of the Senate Ethics Committee is already required under the Senate rules to be nonpartisan; it cannot be hired or fired for political reasons, and it does not change when control of Congress changes. By creating a Commissioner with the same tools and attributes, Chafetz simply adds another layer of bureaucracy–hardly a means to strengthen enforcement.

What, then, is new about this Commissioner? In a word: publicity. Under Chafetz’s proposal, the Commissioner must publicize his or her decisions. Current ethics enforcement already has a very public element to it. Contrary to Chafetz’s assertion, the public can freely file ethics complaints with Congress and the media and watchdog groups closely monitor the process. In addition, under current law, members are required to file exhaustive public disclosures, including disclosures of personal financial information, receipt of gifts, and travel. As a general rule, this kind of public disclosure is important as it keeps members accountable. But the publicity requirement in Chafetz’s proposal is altogether different–a requirement that all investigations, meritorious or not, receive a public airing. In my opinion, this requirement will have two adverse effects on the ethics process.

First, it will eliminate confidentiality. Under the present process, the greatest tool in ferreting out and enforcing ethics violations is not publicity. It is confidentiality. The ability of the ethics committees to investigate in confidence encourages candor, protects the rights of the accuser and the accused, and allows the committees to use the threat of publicity to obtain compliance. With a Commissioner compelled to make findings public, however, these benefits will disappear. The accused may be more likely to conceal and deny. It will be harder to protect the rights of all involved. And, the ethics committees will lose the threat of publicity as a compliance tool. With confidentiality gone, the ethics committees will find it harder to investigate wrongdoing and enforce the rules.

Second, a more publicized process will become a more political process. With the guarantee of publicity, those filing complaints may lodge them for purely political reasons. Every complaint, as Senator Diane Feinstein correctly noted, “will be a 30-second spot in someone’s campaign.” The Commissioner, too, may use his position to forward his own political agenda. Indeed, precisely such a claim was made against those acting under the Independent Counsel Statute (think Ken Starr of congressional ethics). Finally, with allegations made public, members of the ethics committees will focus less on the merits of each allegation and more on the political risks and benefits of their votes. For all three actors–the accusers, the Commissioner, and the members of Congress–publicity will lead to a more political process. The result will be more in-fighting and political attacks, causing enforcement to grind to a halt.

What, then, is the justification for this proposal? According to Chafetz, the Commissioner will increase public confidence. This quest for public adulation, however, is a futile one. Fear of corruption is at the core of our political culture. Our ethics enforcement mechanism is more sophisticated, formalized, and transparent today than it has ever been. Yet, with each advance, the public perception of Congress does not markedly improve. A recent example proves the point. In the summer of 2007, Congress passed the most expansive ethics reform legislation in a decade. By late October 2007, however, such sweeping ethics reform had done little to increase the public’s confidence, with only twenty-two percent approving of the job that Congress was doing. Like reform efforts in the past, a Commissioner for Standards will not increase public confidence. If anything, the opposite may occur. With added publicity and partisanship on matters of ethics, the public’s perception of Congress will likely decline.

Conclusion

No doubt, there are a host of reforms that Congress could adopt to enhance the ethics process and improve the health of our body politic. A Commissioner for Standards, however, is not one of them. Though Chafetz has given his proposal a thoughtful defense, a Commissioner for Standards is a prescription for more partisanship in the congressional ethics process. In my view, it is best to leave this prescription, as they say, on the shelf.

Paul M. Thompson is a partner at the law firm of McDermott Will & Emery. He is a former Assistant United States Attorney and, from 2005-2006, served as counsel to the United States Senate Judiciary Committee. Special thanks to Kelly Falls, Jeffrey Mikoni, and Joseph Thai for their assistance with this piece.

Click here for an audio version of this Commentary, read by Christopher L. Griffin.

Preferred Citation: Paul M. Thompson, First, Do No Harm: Why a Commissioner for Standards Is Unhealthy for the American Body Politic, 117 Yale L.J. Pocket Part 230 (2008), http://yalelawjournal.org/forum/first-do-no-harm-why-a-commissioner-for-standards-is-unhealthy-for-the-american-body-politic.