The Republicans in the House made a mess of things on their first day by first moving suddenly to limit the authority of the Office of Congressional Ethics, then retreating under pressure. When action is taken on a matter of Congressional ethics, and both Donald Trump and the New York Times editorial board take exception, something seems to have gone very wrong.

But Frank Bruni has noted that OCE is not all perfection, and that there is a case for a “bipartisan and transparent review of its role” in the congressional system for defining and enforcing ethical standards.  No one would argue that the current arrangement is working especially well.  The Office of Congressional Ethics was meant as one possible improvement: A check on the Members’ instinct to protect themselves or to shy away from judging their colleagues. But OCE’s record is a complex one. The tension and sometimes open conflict between the House Ethics Committee and OCE, one criticized as too passive and the other as too “zealous,” makes for a confused-- and, if public confidence is the measure, not reassuring-- picture of the state of congressional ethics.

The assumption has long been that congressional ethics depends on reliable enforcement, and that, in the House, with the help of OCE and a push here and there from public opinion, Members can be cajoled and pressured into doing the right thing.  A deeper question may be: what is it that we wish the Members to do--what is the appropriate understanding of their ethical responsibility?

OCE represents a further step toward what might be called the law enforcement model of ethics. The House establishes rules for, say, policing conflict of interests or self-dealing or misappropriation of funds, and then it turns the enforcement over to a cadre of lawyers and law-type procedures. The Members (and staff) who come before the Committee are entitled to representation by legal counsel, and they usually have it. We have allegations of “violations”; a discovery process that includes sworn testimony; and the lawyers hash out whether the rules apply on the specific facts, building into the analysis whatever in the way of precedent might be available.

Because there is the risk that the House’s own lawyers, those serving with the Ethics Committee, may do the bidding of self-protective Members, OCE supplies an independent enforcement function. It operates by design and rule like a law enforcement agency, and it recruits lawyers--most notably, ones with a white-collar criminal or regulatory background--to investigate and advise on the recommendations to the Committee the Office should make. The establishment of OCE answers the long-standing call for Members to “delegate” responsibility for enforcing their ethical obligations, and with this conversion of self-regulation to regulation-by-others, the legalization of ethics advances.

There is now bipartisan interest in a change in the lobbying rules to reach the “back room” or “shadow” lobbyist. Most immediately, the proposal has been to have the new Administration expand the ban by Executive Order on federal government employment of lobbyists to include these individuals believed to be lobbyists in all but the name. This would close a much-derided “loophole,” one that has been especially infuriating to those who do register under the lobbying disclosure law while watching others, who seem to do pretty much what they do, escape on an apparent technicality. An amendment to the Executive Order to capture “shadow lobbying” could be followed by a corresponding change in the lobbying laws to greatly enlarge the numbers subject to mandatory disclosure requirements.

The appeal to close a loophole packs its usual punch. It answers the frustration over apparent inconsistency (the demand that those doing similar things be treated alike), and the extension of reporting requirements to “shadow lobbying” would help create a more complete picture of the total dollars spent on influencing public policy. But, as always, there are complications and competing considerations that should affect how a reform like this is designed--with what limiting principles--and how it is administered.

In 1968, the Nixon presidential campaign successfully persuaded the South Vietnamese government to scuttle peace talks with the North. The goal was to end any possibility of an election-eve accord that would boost the prospects of the Democratic presidential nominee, Hubert Humphrey. Candidate Nixon and his agents assured the South Vietnamese, who took the deal, that a Nixon presidency would better protect their interests. This was a glaring case of foreign interference with elections. The election turned out to be close and the intervention was very plausibly a factor in the outcome. See, e.g., Tim Weiner, One Man Against the World: The Tragedy of Richard Nixon 19-26 (2015).

This is the kind of “interference” in an election that Congress is preparing to investigate. It remains to be seen whether the inquiry will eventually become more far-ranging-- whether it will also examine other forms of foreign influence over the electoral and policy processes that are less brazen but still consequential.

For example, the Federal Election Commission recently could not agree on strengthened restrictions on campaign spending that serves foreign interests. Foreign nationals are prohibited generally from making contributions or expenditures in federal elections, but the rules are porous. Companies controlled by foreign nationals, including those directly or indirectly controlled by foreign governments, may establish PACs and fund campaigns with money contributed by their American executives. The law prohibits foreign nationals associated with the ownership or management of the company from directing or indirectly participating in these funding decisions. The enforcement challenge is obvious: how to capture this “participation,” which may include oral directives or suggestions that are not easily discovered. Beyond this, Americans in the employ of the wholly controlled USA subsidiary might guide their funding decisions by close reference to what they believe or know to be their foreign owners’ interests and preferences.

To put the point in mildest terms, Ellen Weintraub and Don McGahn do not get along. When they served together on the Federal Election Commission, their mutual hostility was well enough known, and their time apart since Mr. McGahn left the agency does not appear to have eased the tension – – certainly not on Commissioner Weintraub's side, and probably not on Mr. McGahn's. Now Ms. Weintraub has published an op-ed in The Washington Post, arguing on the basis of her experience with Don McGahn that he is not fit to be the next White House Counsel.

How McGahn will perform in his current job might be judged as Commissioner Weintraub suggests, by putting the weight she does on a particular reading of his record at the FEC. Or, on a different view, a distinction could be drawn between Mr. McGahn's past and future roles, and a different standard of evaluation could be adopted for the work now ahead of him. In choosing the first of these alternatives, the Commissioner may be incorrectly framing the question of McGahn's suitability as White House Counsel and directing attention away from what is more relevant in assessing the role and performance of that Counsel in the incoming Administration.

For all the talk about weaknesses in the electoral systems--about voter fraud or hacking or machine failure, or all of the above--experience with these types of claims or concerns suggests that, as matters of general public debate, they will soon fade. The rhetoric may linger, but little of use, such as practical reforms, is likely to follow.

This does not have to be the way the story ends. Six years ago, the Presidential Commission on Election Administration suggested at least two potentially helpful measures, one very concrete and urgent, and the other pressing but more politically complicated and so harder to execute. These reforms won’t satisfy everyone: they offer only so much to those with the darkest suspicions. But they would make a major difference in preventing a calamitous breakdown in the voting process and an even greater collapse of public confidence.

First, the Commission emerged from its study of various administrative problems to sound an alarm about the state of election equipment and voting technology. It elected to use the words "impending crisis”: It did so in the knowledge that election administrators across the country would not accuse it of exaggerating. What was leading inexorably toward crisis was:

The widespread wearing out of voting machines purchased a decade ago, the lack of any voting machines on the market that meet the current needs of election administrators, a standard-setting process that is broken down, and a certification process for new machines that is costly and time-consuming.

Jurisdictions looking to address the problem did not then, and most do not now, have enough money to do it, or to do it promptly.

The Commission also recommended that post-election audits of voting equipment should be conducted after each election "as part of a comprehensive audit program," with full disclosure about machine performance in a common data format. The Commission specifically endorsed both risk-limiting audits, intended to validate the election outcome with a sample of votes cast, and performance audits to address the question of whether the voting technology performed as required.