Seeing the President-elect as a champion of ethics would be one way to interpret the comedic events of the past 36 hours in the upside-down world of what was once termed the capital of the free world. The comedy opened Monday evening, January 2, with Republican members of the incoming House of Representatives voting (in secret and without prior notice) to curb the Office of Congressional Ethics, the independent body which hears allegations of ethical transgressions by House members and staff. The vote met with immediate and sustained outrage by citizens, media commentators, and government reform groups. Criticism was also voiced from a source many found unlikely. In a pair of messages (here and here) Tuesday morning President-elect Trump tweeted that:
“With all that Congress has to work on, do they really have to make the weakening of the Independent Ethics Watchdog, as unfair as it may be, their number one act and priority. Focus on tax reform, healthcare and so many other things of far greater importance! #DTS”
Within hours of the Trump tweets, the comedy ended. Chastened, on-the-defensive, with even their allies questioning their political competence, House Republicans reversed course and left the congressional ethics office’s powers intact.
Arguments about the meaning of the Trump tweets are legion. Are they evidence that his pledge to, as the hash-tag reads, “DTS” (drain the swamp, i.e., Washington, of unethical behavior and outright corruption) is to be taken seriously? Or could he care less whether the House of Representatives kills or maims its independent ethics watchdog and he was simply stating the obvious: the timing of the vote was a dumb (really dumb) political move, particularly on an otherwise slow news day.
As much fun as such speculation might be, I would rather take a look at Office of Congressional Ethics. What is it? Is it really necessary? Are House Republicans right that it needs reforming?
What is the Office of Congressional Ethics?
The OCE was created by the House in 2008 to reviews allegations of misconduct by House Members and those who work for them. Investigations are in two stages: a 30-day preliminary review followed by a 45-day second-phase review that can be extended. At the end of the preliminary review, the office can decide there is nothing to the allegation and close the matter. Reports suggest it does so in roughly half the cases. (Aggregate statistics for the seven years the office has been in operation are not on its web site. Only data by quarter are. The half is an estimate based on eye-balling several of its quarterly reports.)
If the office decides there is “probable cause to believe the allegations are true,” a second stage investigation is initiated. At the end of the second stage, a recommendation is made to the House Ethics Committee whether to pursue or close the matter. Of the estimated half of the allegations that make it to stage two, it looks, again from eye-balling several quarterly reports, that in roughly two-thirds of the cases the office recommends the Ethics Committee take further action and in one-third the case be closed. Data on how often the committee agrees with the action recommended by the office is not on the office’s web site.
Is the Office of Congressional Ethics Necessary?
The traditional argument against a legislative ethics office is that legislators are accountable to the voter, and if they violate the voters’ trust, they will be booted out of office. The most recent test of whether voters punish unethical House members at the ballot box is University of Houston Political Scientist Scott J. Basinger’s analysis of the fate of “scandal-tainted” House members over elections running from 1992 through 2009. For purposes of analysis “scandal-tainted” means any member of the U.S. House of Representatives mentioned in any press report, Congressional document, book or article in connection with a scandal of any kind: financial, political, sexual, political, or other. Note that the member need not have been deemed to have done anything wrong and that the inclusion of sex scandals covers private behavior that may not violate any law or rule of the House. “Scandal-tainted” also covers those who enjoyed free overdraft privileges on the checking account they maintained at a House-operated bank.
Using this broad definition 237 Members of the House of Representatives were scandal-tainted over the 20 year period. Over one- third of scandals were financial, the largest share of which were Members who received free overcharge privileges at the House bank. Allegations of sexual peccadilloes accounted for another 18 percent and 18 percent of the allegations involved claims of conflict of interest, bribery, or other corruption crimes. Use of campaign contributions for non-campaign purposes and other election related offenses constituted 15 percent with the remaining 12 a miscellany of alleged violations.
The career of a Congressperson can end through retirement or defeat at the ballot box, either in a primary or general election. Of the 237 incumbents Basinger defined as scandal-tainted, he found that as a group they were more than twice as likely to retire from office as those who were not tainted and further that they lost their party’s primary at a rate almost 13 times greater than scandal-free member. One’s re-election chances depend in part on the quality of one’s opponent, and Basinger found that in a general election where a scandal-tainted member faced an opponent with prior office-holding experience, his proxy for a “quality” opponent, almost half, or 47 percent, lost. By comparison, the loss rate for non-scandal tainted members with a quality opponent was 13 percent. (Basinger used difference-in-difference analysis and other statistical controls to control for differences in the re-election environments members faced.)
Remembering the very broad definition of “scandal-tainted” Basinger adopts, these numbers sound like crooked politicians very likely get their comeuppance at the ballot box if not before. But more digging would surely clarify the picture. Are those who retire or lose the ones against whom the most serious allegations are raised? Proven? Or have some serious criminals managed to con the voters in their district?
One distinguished student of American politics who seems to think some have is Norman Ornstein of the American Enterprise Institute. At least that is what I take from a lengthy post denouncing the Republican vote and defending the office. He argues that it is difficult if not impossible for legislators to pass judgment on the ethics of their colleagues, that they therefore often shirk their duty, and that the consequence is that the public loses trust in them. Hence the need for an independent ethics office. His one example to show why an independent office is so necessary is the shabby treatment accorded the Republican chair and two Republicaan members of the Ethics Committee by House Republican leaders when they voted to sanction a member of the Republican leadership for ethics violations.
Does the Office Need Reforming?
Lost in the brouhaha over the House Republicans effort to (choose one: reform, gut, weaken, destroy) the Congressional ethics office is the substance of their complaint with the way it currently does business. For that one must consult a letter sent by a group of lawyers, Democrats and Republicans in 2013 who represent Congresspersons and staff before the office and an earlier opinion piece one of them wrote. They argue office’s current procedures don’t give their clients an opportunity to respond to allegations early in the process and that as a consequence a one-sided report of the allegations can be made public, condemning their clients in the court of public opinion before they have had a chance to explain. The reply is that the report is like a grand jury indictment, another one-sided recounting of allegations published before a suspect has a chance to make his or her case. The rebuttal of course is even a one-sided report of allegations against a candidate for office can have a devastating impact (see, Clinton, Hillary, 2016 election).
In creating such a political mess around their efforts to change the way the Office of Congressional Ethics operates, House Republicans have at least spotlighted issues that merit serious thought. Mr. Ornstein is surely right that one of the most challenging jobs any elected body faces is disciplining its members for unethical behavior. The challenges the “Mother of Parliaments” has faced and its stumbling efforts to create an independent watchdog are well-documented.
Basinger’s analysis suggests that the U.S. Congress doesn’t need an independent entity to police legislators’ ethical lapses. Would more analysis prove that out? How well has the OCE performed? How often has the Ethics Committee agreed with its findings? And what have been the results? Are more safeguards required to protect those wrongly accused of wrongdoing from a voter backlash?
In an effort to save some face after the debacle of the secret vote, House Republicans have promised to take up these questions at a more opportune time. Let’s hope they do, and with a seriousness and political adroitness the issues deserve.