Outside panel to probe ethics may run afoul of Constitution

For years, interest groups and the media have insisted that members of the House and Senate have failed to investigate alleged ethics violations by their colleagues because of a desire to protect their own. Some argue that the only way to remedy this failure is to introduce impartial, non-congressional investigators into the process.

Members of a special task force appointed by Speaker Nancy Pelosi (D-Calif.) and chaired by Rep. Michael Capuano (D-Mass.) are close to issuing a final recommendation on whether individuals outside of Congress will participate in the ethics process, and how that process would work.

For reasons that begin but do not end with the Constitution, that task force and the House leadership should think long and hard before agreeing to any proposal that introduces outsiders into the ethics process.

Consider one proposal that is receiving serious consideration: the establishment of a panel of individuals not connected to Congress to review and investigate charges of ethics violations by members, officers and staff of the House.

A series of questions springs immediately to mind: Will this panel amount to an Office of Independent Counsel with the authority to investigate any and all allegations or suggestions of impropriety? What will be the threshold that will trigger its interest? And how will the panel obtain the information that will direct its interest in a member’s behavior?

Will the lead fall to interest groups, which while unable to submit complaints directly, may present them “over the transom”? Or from political operatives with a stake in embarrassing the opposition?

Will matters that are under review by the panel be made public, casting a cloud of suspicion over the targets of their allegations, guilty or innocent?  And how will this panel of outsiders operate? Will it have investigative staff and a budget? Will it call witnesses — or members — to provide testimony and other information?  And, after the panel has completed its investigations, what role would the Ethics Committee play? Those are some practical considerations. But there are more fundamental issues to weigh.

From a constitutional perspective, turning over protected information to individuals outside Congress may conflict with the Speech or Debate Clause.  Should information that the House otherwise would fight to shield from the scrutiny of executive branch prosecutors on Speech or Debate Clause grounds be voluntarily provided to this group?

Most will agree that, with few exceptions, when the Ethics Committee has completed an investigation, its actions are viewed as fair and well reasoned, and any recommended sanctions are appropriate under the circumstances.

The most frequent complaint about the Ethics Committee is that some matters that should be investigated are swept under the rug. It is true that polls suggest there are issues of pressing public concern relating to corruption that the House would be wise to address.

To that end, there should be a renewed commitment by the majority and minority leadership in the House to enforce the ethics rules aggressively and objectively.

The budget of the Ethics Committee should be increased, allowing it to continue to build a nonpartisan, professional staff that is immune from turnover due to changes in the committee leadership. And there are steps that can be taken to enhance the Ethics Committee’s ability to effectively discharge its mandate. Greater transparency in the ethics process, for example, would enhance public confidence.

That said, the latest ethical headline spinning around Congress should not be the basis for overturning Congress’ Article I, Section 5 constitutional mandate to discipline its own members. There could be no greater capitulation of constitutional responsibilities than to cede the authority to investigate member ethical violations to those not serving in the Congress.

Before adopting any system that includes outside participants, those concerned about the House leadership’s commitment to cleaning up the culture of corruption in Washington — a commitment on which it has already delivered — should encourage the Ethics Committee to aggressively pursue all allegations of impropriety.  

The latest changes to congressional ethics rules were largely motivated by recent high-profile ethical scandals, none of which involved any failure to act by the House Ethics Committee.

Those circumstances should not be offered up as an excuse to fundamentally shift a constitutional obligation to a group of unelected individuals.

Spulak was Democratic staff director of the House Rules Committee, then general counsel to the House. He is now a partner in the Public Policy and Government Advocacy Practice Group at King & Spalding.