My colleague Brian Svoboda, an expert in congressional ethics, has written an insightful commentary on how we might think about the ends and design of effective congressional ethics regulation. This is a complex and important question to which altogether too little attention has been devoted. Brian's extensive experience with these issues in private practice, coupled with his grasp on the broad policy and constitutional issues, enable him to effectively frame the issues for the discussion--and reforms-that are needed. He also tweets periodically on these issues at https://twitter.com/BrianSvoboda.

Brian's commentary follows:

From an Essay on Impeachment, a Useful Perspective on Congressional Ethics

Greg Weiner cogently argues in The New York Times that we should view the impeachment process institutionally in light of its constitutional design. (Full disclosure: while I used to work with Weiner in the Senate, my views are meant neither to be his nor anyone else’s.) Weiner says that impeachment’s purpose is not retributive, but prophylactic and forward-looking. The process is meant to “protect the public against future acts of recklessness and abuse.” Impeachment serves as a safety valve in the overall constitutional machinery to keep the system functioning properly.

While the processes and standards are markedly different, Weiner’s argument is highly relevant to Congressional ethics enforcement also. Since the House last reformed the ethics process in 2008, creating the Office of Congressional Ethics as an independent investigative authority, there has been a conspicuous lack of reflection over what the purposes of ethics enforcement really are, and how those purposes are best served. Weiner’s institutional approach offers one good perspective for this sort of reflection.

Justice Ginsburg’s recent press comments have been noted mostly for her openly expressed disdain for the Trump candidacy. Less surprising in the remarks was the Justice’s “impossible dream” that Citizens United be overturned. She has said this before, and since she dissented in that case, there is not much news here, unless anyone still had doubts that for this Justice, the killing off of that decision is a priority.

The comment was reported at the same time as the Complaint filed with the Federal Election Commission by Representative Ted Lieu and others who intend to set into motion the reconsideration the Justice is hoping for. And so it invites an appraisal of its prospects for accomplishing the Justice Ginsburg’s “impossible dream.”

As my colleague Marc Elias has pointed out, the FEC cannot succeed; this is a lost cause. When the Complaint fails, it may do little more than unnecessarily promote the belief that CU is here to stay. It is not clear why this is the best legal maneuver, or the most effective exercise in public communications, in the attack on Speechnow and Citizens United.

Aside from the question of strategy, the Complaint itself  is a surprisingly subdued performance. It has a bit the feel of going-through-the-motions: doing the least possible to set up the agency dismissal and the move to the courts. True, the Complainants knew that the outcome at the agency was inevitable and there is time later to build their argument. But the case they preview in the Complaint seems flat and this certainly can’t help the Complainants in their subsequent appeal.