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.

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.

For all the study expended on public corruption and possible measures to control it, few take seriously or pay much attention to the “ethics” rules that Congress makes for itself.  Something interesting is going on here.  On the one hand, supporters of campaign finance reform are quick to defend Congress’ legislative handiwork over the years.  Defenders of McCain-Feingold deny that it was infected with incumbent self-interest.  Upholding the new law against constitutional challenge, the Court in McConnell v. FEC even situated it within a long history of Congressional steps to combat corruption, characterized as   “careful” and “cautious” and deserving of deference. 540 U.S. 93, 117 (2010)[citations omitted].  Yet when Members prescribe rules to govern their conduct in dealings with supporters or donors, the applause is thin and it is rare that legislators get even the benefit of the doubt.

It is possible that an important part of the story has been missed, or underplayed, and that the Supreme Court may have the opportunity to rectify, if only indirectly, the imbalance.

The argument over the constitutionality of the Arizona Independent Redistricting Commission can go the way of plain language debates, and it can also branch off into the question of whether it is good to have legislators function under the threat of initiative. A fine brief filed by Professor Nate Persily, on behalf of himself and eminent political scientists Bruce Cain and Bernard Grofman, takes on that question, among others, and answers it in the affirmative.

Under their theory, legislators who know that the public might act in their place may engage in constructive defensive maneuvers: they may make more of an effort to craft a redistricting map that is fair or not lopsidedly partisan. And even if the voters take this decision out of their hands, the lawmakers will be spared the bloody battles that are singularly damaging to legislators' working relationships across-the-board.

On this view, initiatives like the one in Arizona can be defended as effective in structuring incentives for sound legislative decision-making or in protecting against the collapse of comity. But they can also draw the objection that the effect of these incentives is uncertain and that this uncertainty exacerbates constitutional concerns about the invasion of a legislature’s authority.