Both Judge and Party: Why Congressional Ethics Committees Are Unethical
Thompson, Dennis F., Brookings Review
Congress is suffering an embarrassment of ethics. It has taken action on more ethics cases in recent years than ever before, but its actions have also provoked more criticism than ever before. Some of the criticism, especially the implication that the work of the ethics committees is being compromised by corruption among members of the committees, is unfair. But some exposes a fundamental difficulty at the heart of the process by which members of Congress try to enforce legislative ethics. Representative Lee Hamilton captured the problem precisely when he observed: "There is a kind of innate conflict of interest when members of the Ethics Committee are called upon to judge their colleagues."
The conflict has been on conspicuous display in the current session of Congress, as members of the House of Representatives find themselves again trying to judge the conduct of their Speaker and senators struggle to carry out an investigation of the chair of the powerful Finance committee. In addition to the general conflict of interest inherent in members' disciplining a colleague whose fate is linked to theirs, specific questions of conflict of interest and partisanship dog the ethics committees.
At least two members of the House ethics committee have associations with GOPAC, the political action committee that is key in one of the most serious charges against the Speaker. The committee, held over from the previous Congress, is short four members because the Speaker could not appoint new members without creating yet another conflict of interest. The committee has also fallen into partisan squabbles over the scope of the investigation and whether to appoint a special counsel.
During last summer's Senate hearings on Bob Packwood, Mitch McConnell, the ethics committee chair, told Senator Barbara Boxer that if she earned out her plan to force a floor vote on the question of public hearings on Packwood, he would retaliate by holding hearings on prominent Democrats. He threatened to investigate the extent of Senator Edward Kennedy's responsibility for the death of Mary Jo Kopechne in Chappaquiddick 26 years ago.
Although ethics committees in the past have sometimes managed to conduct themselves in a less partisan and more responsible manner, these recent cases are probably more characteristic of what the future holds. As collegiality and comity decline in Congress, so it will diminish in the committees. Under these conditions the difficulties created by the inherent conflict of interest in the ethics process are bound to become greater. Doubts about the fairness of the proceedings and public distrust of the institution are almost certain to grow unless steps are taken--and soon--to restore credibility to the institutional practices by which members discipline each other.
Judging in Their Own Cause
The fundamental flaw in the current process--what makes the ethics committees unethical--is that they are violating a basic principle of ethical and constitutional judgment. As James Madison put it, "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time."
In what sense is the Senate or the House a party to the cause when it judges a member charged with an ethics violation? It is not, of course, literally on teal, but its interest is closely connected to the fate of the member. The distinction between judge and party to the cause is blurred in three ways.
First, members of Congress depend heavily on one another to do their job. They have worked together in the past and they must work together in the future. The obligations, loyalties, and civilities that are necessary, even admirable, in these circumstances make it difficult to judge colleagues objectively or to act on the judgments even when objectively made. …