A Question of Ethics

A Review of 2008: The Year in Congressional Ethics

December 8, 2008

Last December, this column called 2007 the “Year of Congressional Ethics.” But 2008 has been the year that 2007’s changes were felt.

Some might have found my moniker for 2007 overblown. After all, Capitol Hill veterans know that the issue of Congressional ethics is a bit like Halley’s comet. It captures the public’s attention every so often and then fades from view until the next time that it comes around. Whereas Halley’s comet appears every 75 years, the issue of Congressional ethics has surfaced a bit more often, at least in the last half-century.

Its appearances have usually been triggered by a spike in public concern about misconduct in Congress because of some conspicuous event. For example, in the mid-1960s, House and Senate investigations into allegations of unethical conduct led to the creation of each chamber’s ethics committee as well as a code of conduct, including the first gift rule. In 1989, the Ethics Reform Act toughened each chamber’s ethics rules. In the mid-1990s, the House and Senate imposed even tougher restrictions and adopted a new gift rule. The House Rules Committee said at the time that one of the reasons for the changes was that “public opinion holds Congress as an institution in low esteem.”

Some skeptics believe that reform efforts like these have done little either to curb corruption or to appease watchdog groups clamoring for change. For example, of the mid-1990s gift reform, columnist Norman Ornstein wrote in Roll Call that it would “barely — if at all — mute the drumbeat of criticism from public interest groups and editorial pages about the influence of special interests on Congress.” In that, he has been proved right.

Like many of the changes that preceded them, not all of 2007’s ethics reforms were grave. Nevertheless, some had more teeth than previous years’ versions. Most significantly, the reform extended the reach of the ethics rules beyond Congress for the very first time. Until 2007, through all the revisions of the Congressional ethics rules, those rules always remained an internal code of conduct — something that Congress used to keep in line the behavior of Members and staffers. The Honest Leadership and Open Government Act took that internal code of conduct and, for the first time, applied part of it outside Congress: namely, to lobbyists and the businesses that employ them. Specifically, the HLOGA made it illegal for them to violate the Congressional gift and travel rules. And, the HLOGA also required lobbyists and business to make twice-yearly certifications of their compliance.

In 2008, lobbyists and businesses felt the impact of these reforms. Lobbyists scrambled to learn the Congressional gift rules. Businesses designed and implemented compliance mechanisms. Ethics attorneys held training sessions in conference rooms filled with concerned lobbyists and compliance officers. Finally, in July, lobbyists for the first time actually had to certify that they and their businesses complied with the Congressional gift rules. As we approach the end of the year, while the panic has subsided a bit, questions still linger about if and when a lobbyist or business will actually be charged with a gift rule violation.

The HLOGA aside, 2008 had its share of other ethics stories as well. In the House, the Committee on Standards of Official Conduct was busy with several investigations. In fact, in September, Rep. Charlie Rangel (D-N.Y.) even took the improbable step of demanding an investigation of himself by the committee. The committee obliged. However, to date, neither the investigation of Rangel nor any other House ethics probe in 2008 has resulted in sanctions. Thus, the most significant development in the House may have been the creation of the Office of Congressional Ethics. What impact it will have remains anyone’s guess.

On the Senate side, there were also investigations this year, several of which even saw resolution. In February, the Ethics Committee issued a Public Letter of Admonition to Sen. Larry Craig (R-Idaho) relating to his June 2007 arrest at the Minneapolis-St. Paul International Airport and subsequent guilty plea. The committee concluded that Craig’s attempt to withdraw his guilty plea was contrary to the Code of Ethics’ requirement that Senators “uphold the Constitution, laws, and regulations of the United States.” It also concluded that Craig should have known that the officer who arrested him could have perceived Craig to be attempting to use his position to receive favorable treatment when Craig showed the officer his Senate business card and said: “What do you think about that?”

In April, the committee issued a Public Letter of Qualified Admonition to Sen. Pete Domenici (R-N.M.) relating to his October 2006 telephone call to a U.S. attorney regarding a pending federal grand jury investigation. The committee found no substantial evidence that Domenici attempted to improperly influence the investigation, but it concluded that he should have known that his call created an appearance of impropriety.

In May, the committee dismissed a complaint against Sen. David Vitter (R-La.) relating to allegations of solicitation of a prostitute. The committee based its dismissal on the facts that Vitter’s alleged conduct preceded his joining the Senate, he was not charged criminally and he did not use his public status for improper purposes.

Finally, November saw the climax of the biggest ethics story of the year, when Sen. Ted Stevens (R-Alaska) was convicted for filing false financial disclosure reports. His conviction served not just as a wake-up call to Members and staffers regarding the risks of filing false reports, but also as a reminder to lobbyists to be careful when filing their own reports and certifications. Whether Stevens’ conviction will survive appeal remains unknown.

So, what lies ahead in 2009? With any luck, we will receive answers to some of the questions posed by 2008. Will the ongoing Senate and House ethics investigations result in sanctions? How will the Office of Congressional Ethics affect the House ethics process? Will Stevens’ conviction survive appeal? Will a lobbyist or business be charged for violating the Congressional gift rules? And, most importantly for me, as new Members and staffers join Congress, what new “questions of ethics” will appear in my inbox?

© Copyright 2008, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.