Enforcement of Congressional Rules of Conduct: An Historical Overview

Enforcement of Congressional Rules of Conduct:
An Historical Overview
Updated November 18, 2008
Mildred Amer
Specialist on the Congress
Government and Finance Division



Enforcement of the Congressional Rules of Conduct:
An Historical Overview
Summary
The Constitution vests Congress with broad authority to discipline its Members.
However, only in the past 40 years have both houses established formal rules of
conduct and formal disciplinary procedures whereby allegations of illegal or
unethical conduct may be investigated and punishment may be given.
In 1964, the Senate established its first permanent ethics committee, the Select
Committee on Standards and Conduct, which was renamed the Select Committee on
Ethics in 1977. The House first established a permanent ethics committee, the
Committee on Standards of Official Conduct, in 1967. In 1968, each chamber
adopted rules of conduct. Previously, Congress dealt with misconduct on a case-by-
case basis and relied on the decisions of voters in elections as the ultimate authority
in questions of wrongdoing.
In recent years, the effectiveness of the two congressional ethics committees has
been debated. Numerous proposals made within and outside of Congress have
suggested alternative means to enforce congressional rules of conduct, including the
use of an outside, independent entity composed of non-Members.
On March 11, 2008, with the adoption of H.Res. 895, the House created the
independent Office of Congressional Ethics (OCE) to review allegations of
impropriety by Members, officers, and employees and, when appropriate, to refer
allegations to the Committee on Standards of Official Conduct for final disposition.
The resolution had been proposed by the Special Task Force on Ethics Enforcement.
The office is composed of six board members. Current Members of the House,
federal employees, and lobbyists will not be eligible to serve.
This report describes the evolution of congressional enforcement of
congressional rules of conduct and summarizes the disciplinary action taken by the
House Committee on Standards of Official Conduct and the Senate Select Committee
on Ethics. It also discusses the recommendations of the House Special Task Force on
Ethics Enforcement and related proposals as well as selected other recent changes.
For additional information, please refer to CRS Report RL30650, The Senate
Select Committee on Ethics: A Brief History of Its Evolution and Jurisdiction, by
Mildred Amer; CRS Report 98-15, House Committee on Standards of Official
Conduct: A Brief History of Its Evolution and Jurisdiction, by Mildred Amer; and
CRS Report RL31382, Expulsion, Censure, Reprimand, and Fine: Legislative
Discipline in the House of Representatives, by Jack Maskell.
This report will be updated if there are changes in the enforcement of the
congressional rules of conduct or if there are additional congressional disciplinary
cases.



Contents
Background ......................................................1
Creation of the Ethics Committees................................1
Expulsion and Censure of Members of Congress.....................6
House Committee on Standards of Official Conduct......................7
Investigations .................................................8
Recent Major Procedural Changes.................................9
Senate Select Committee on Ethics...................................12
Investigations ................................................13
Recent Major Procedural Changes................................14
Proposals For Outside/Independent Enforcement of
Congressional Rules of Conduct.................................15
Creation of the House Office of Congressional Ethics................17
Issues and Concerns...........................................21
Constitutionality of Persons Not Members of Congress
in the Ethics Process..................................21
The Use of Subpoena Power................................22
Ethics Complaints from the Public...........................24
Conclusion ......................................................26



Enforcement of the Congressional Rules of
Conduct: An Historical Overview
Background
The authority of Congress to discipline its Members is found in Article I,
Section 5, clause 2 of the Constitution, which states in part, “Each House may
determine the Rules of its Proceedings, punish its Members for disorderly Behaviour,
and, with the Concurrence of two thirds, expel a Member.” Through the years,
disorderly behavior has become synonymous with improper conduct such as support
of rebellion, disloyalty, corruption, and financial wrongdoing, particularly for
personal gain. However, only within the past 40 years has Congress systematically
undertaken self-discipline related to conduct.
The Constitution in Article I, Section 6, clause 1 also provides, “They [Members
of Congress] shall in all Cases, except Treason, Felony and Breach of the Peace, be
privileged from Arrest during their Attendance at the Session of their respective
Houses, and in going to and returning from the same....” According to the
Constitution Annotated, this clause “does not apply to service of process...in criminal
cases. Nor does it apply to arrest in any criminal case. The phrase ‘treason, felony or
breach of the peace’ is interpreted to withdraw all criminal offenses from the1
operation of the privilege.” [Footnotes omitted.] In other words, Members of
Congress are not exempt from prosecution while in office for violations of federal
or state criminal law.
This report traces the evolution of enforcement of congressional rules of conduct
against Members by the House and Senate. It also traces the evolution of the House
and Senate Ethics Committees, and describes some of the recent changes,
implemented or proposed, in congressional enforcement of rules of conduct. The
report does not deal with changes to federal or state criminal law or with criminal
prosecutions of Members of Congress.2
Creation of the Ethics Committees
The House and Senate did not begin to consistently exercise disciplinary powers
against Members until the mid-1960s. Prior to the creation of the Senate Select


1 U.S. Congress, Senate, The Constitution of the United States of America: Analysis and
Interpretation, S.Doc. 108-17, 108th Cong., 2nd sess., prepared by the Congressional
Research Service (Washington: GPO, 2004), p. 134.
2 See, for example, CRS Report RL33229, Status of a Member of the House Who Has Been
Indicted for or Convicted of a Felony, by Jack Maskell.

Committee on Standards and Conduct in 1964 and the House Committee on
Standards of Official Conduct in 1967, there were no continuing mechanisms for
congressional self-discipline. When allegations of misconduct were investigated, the
investigation was often conducted by an ad hoc or select committee created for that
purpose. Sometimes allegations were considered by the House or Senate without
prior committee action. Publicity and the test of reelection were considered the major
forms of redress for allegedly unethical behavior in Congress.3
According to Senate Historian Richard Baker, “For nearly two centuries, a
simple and informal code of behavior existed. Prevailing norms of general decency
served as the chief determinants of proper legislative conduct.”4 Baker further
asserted that for most of its history, “Congress has chosen to deal, on a case-by-case
basis, only with the most obvious acts of wrongdoing, those clearly ‘inconsistent with
the trust and duty of a member.’”5
Two books published in the early 1950s criticized the failure of Congress to
investigate alleged misconduct by Members or to take disciplinary action when
allegations were proven true.6 Congress was accused in these books of avoiding
responsibility by leaving the remedies for wrongdoing in the hands of the electorate.
The authors cited public distrust of public officials and blamed Members of
Congress, who, they said, never requested an investigation of colleagues’ alleged
misconduct. The opposing view was argued by Representative Sam Rayburn, House
Speaker (1940-1947, 1949-1953, and 1955-1961), who espoused the dominant view
in Congress at that time — the ethics of a Member should be judged not by his peers,
but by the voters.7


3 Through the nineteenth and early twentieth centuries, the House and Senate on occasion
disciplined Members by censure, expulsion, or exclusion. See CRS Report 93-875,
Expulsion and Censure Actions Taken by the Full Senate Against Members, by Jack
Maskell. Today, the House and Senate may employ the disciplinary options of censure and
expulsion as well as reprimand, letters of reproval or letters of admonition, and financial
restitution. See CRS Report RL34716, Status of a Senator Who Has Been Indicted for or
Convicted of a Felony, by Jack Maskell. The Supreme Court, in Powell v. McCormack, 395
U.S. 486 (1969), barred the House from excluding a Member who met the constitutionally
stated qualifications for membership. This decision presumably would apply as well to the
seating of a Senator-elect.
4 Richard Baker, “The History of Congressional Ethics,” in Bruce Jennings and Daniel
Callahan, eds., Representation and Responsibility: Exploring Legislative Ethics (New York:
Plenum Press, 1985), p. 4. (Hereinafter cited as Baker, “The History of Congressional
Ethics.”)
5 Ibid., p. 3
6 George A. Graham, Morality in American Politics (New York: Random House, 1952); and
H.H. Wilson, Congress: Corruption and Compromise (New York: Rinehart and Co., 1951).
Wilson also cited 1944 and 1946 National Opinion Research Center Surveys indicating that
the public believed politicians could not be honest.
7 “Qualifications and Conduct,” in Guide to Congress, 5th ed., vol. II (Washington: CQ
Press, 2000), p. 930.

As late as the 1960s, political scientist Robert Getz discussed the often-
described “club spirit” that existed in Congress as well as congressional adherence
to unwritten norms of conduct vis-à-vis its reluctance for self-discipline. He credited
“the combination of historical precedent, the fear of partisan motivations, and the
requirement of functioning in an atmosphere of mutual respect and cooperation as
creating the view through the mid-1960s that Congress was not the forum before
which the membership should be disciplined.”8
Through the years, perceptions of wrongdoing or conflicts of interest by
Members of Congress have changed. What might be viewed today as blatant
impropriety could have been an accepted norm or simply ignored years ago. For
example, when Daniel Webster was chair of the Senate Finance Committee (1833-
1837), he was also on the payroll of the Bank of the United States. However, very
few colleagues criticized him for that or for his practice of going from the Senate to
the Supreme Court, which was then housed in the Capitol, to argue cases in which
he had a legislative or financial interest. According to Senate Historian Baker,
Webster made no effort to keep his business ties a secret.9 Senator Robert Kerr of
Oklahoma (1949-1963), a gas and oil millionaire, was blunt about the
correspondence of his interests and those of his constituents. He was reported to have
said that these constituents would not send anyone to Washington who had no
community of interest with them since that person “wouldn’t be worth a nickel.”10
In the mid-1940s, concerns were first heard in the contemporary era over the
lack of specific standards of conduct and requirements for public financial disclosure
in any of the three branches of government.11 There was also criticism of some
Members of Congress for supplementing their salaries with outside income.12 In

1946, during the 79th Congress, Senator Wayne Morse of Oregon introduced S.Res.


306, the first public financial disclosure legislation. His resolution, which would have
applied to Senators, was predicated on the “Caesar’s-wife principle” that Members’
behavior should be above suspicion.13
Senator Morse continued to introduce his measure into the 1960s, expanding it
to include all three branches of government, and gaining support from Senators Paul


8 Robert S. Getz, Congressional Ethics: The Conflict of Interest Issue (Princeton, N.J.: Van
Nostrand & Co., 1966), p. 113.
9 Baker, “The History of Congressional Ethics,” p. 8.
10 “Senator Kerr Talks about Conflict of Interest,” U.S. News and World Report, September

3, 1962, p. 86.


11 “Ethics,” in Congress and the Nation, 1945-1964 (Washington: Congressional Quarterly
Inc, 1965), p. 1409.
12 Sen. Wayne Morse, “Reports by Senators on Sources of Outside Income,” remarks in the
Senate, Congressional Record, vol. 92, July 23, 1946, p. 9741; and Sen. Wayne Morse,
“Disclosure of Assets by Members of Congress,” remarks in the Senate, Congressional
Record, vol. 109, December 20, 1963, p. 25275.
13 Sen. Wayne Morse, “Reports by Senators on Sources of Outside Income,” remarks in the
Senate, Congressional Record, vol. 92, July 23, 1946, p. 9741.

Douglas and Clifford Case and others.14 President Harry S Truman also sent a
message to Congress in 1951 recommending public disclosure of personal finances
by senior members of all three branches of government.15
In 1951, during the 82nd Congress, a subcommittee of the Senate Labor and
Human Resources Committee, chaired by Senator Douglas, held hearings on
S.Con.Res. 21, a proposal by Senator J. William Fulbright to create an ethics
commission of private citizens appointed by the Speaker of the House and the
President pro tempore of the Senate.16 Though the Fulbright proposal was not
adopted, it was endorsed by the Douglas subcommittee, which studied and made
recommendations on a wide range of other governmental ethics issues, including
financial disclosure, lobbying by former Members of Congress, the cost of
campaigning, honoraria, and the practice of representing constituent concerns before
executive agencies.17
During the 85th Congress in 1958, Congress for the first time adopted a general
Code of Ethics for Government Service for officials and employees in the three
branches of government. Although initially proposed in 1951 by Representative
Charles Bennett, the impetus for adoption was a House investigation of presidential
chief of staff Sherman Adams, who was alleged to have received valuable gifts from
an industrialist being investigated by the Federal Trade Commission.18 The standards
in the 10-point code are still recognized as continuing ethical guidance in the House


14 Sen. Wayne Morse, “Disclosure of Assets by Members of Congress,” remarks in the
Senate, Congressional Record, vol. 109, December 20, 1963, pp. 25275-25278; “Clifford
Philip Case” (editorial), The Washington Post, March 9, 1982, p. A18; and “Former Sen.
Paul H, Douglas Dies; Liberal Illinois Democrat Was 84,” The New York Times, September

25, 1976, p. 24.


15 “Financial Disclosure Law Recommended by President Harry S Truman on September 27,

1951,” Congressional Record, vol. 123, September 27, 1977, pp. 31313-31314.


16 U.S. Congress, Senate Committee on Labor and Human Resources, Subcommittee to
Study Senate Concurrent Resolution 21, Establishment of a Commission on Ethics inndst
Government, hearings , 82 Cong., 1 sess., June 19-22, June 25-29, July 2-3, July 5-6, and
July 9-11, 1951 (Washington: GPO, 1951).
17 U.S. Congress, Senate Committee on Labor and Public Welfare, Ethical Standards in
Government, committee print, 82nd Cong., 1st sess. (Washington: GPO, 1951).
18 “Senate Approves a Code of Ethics,” The New York Times, July 12, 1968, pp. 1, 4. This
Code of Ethics can be found at 72 Stat. B12, and at
[http://usgovinfo.about.com/blethics.htm], visited January 25, 2008. In addition, see
testimony of Rep. Bennett, in U.S. Congress, Senate Committee on Labor and Publicndst
Welfare, Ethical Standards in Government, committee print, 82 Cong., 1 sess.
(Washington: GPO, 1951), pp. 387-388; Rep. Bennett, “Code of Ethics for Government
Service,” remarks in the House, Congressional Record, vol. 97, June 26, 1951, pp. 7175-

7178; and testimony of Rep. Bennett, in U.S. Congress, House Committee on Post Officethnd


and Civil Service, Code of Ethics For Government Service, hearings, 84 Cong., 2 sess.,
March 29, 1956 (Washington: GPO, 1956).

and Senate, although they were adopted by congressional resolution rather than law
and therefore are not legally binding.19
In the 1960s, allegations of misconduct against Bobby Baker, who was secretary
to the Senate majority, and Representative Adam Clayton Powell, Jr., and subsequent
investigations, caused some Members of Congress to voice concerns over the lack
of specific congressional standards of conduct and means of enforcing congressional
self-discipline.20 Subsequently, the Senate created the Select Committee on Standards
and Conduct 1964 and the House established the Committee on Standards of Official
Conduct in 1967.21 In 1968, the House and the Senate each adopted, as part of their
standing rules, the first conduct and financial disclosure regulations for Members,
officers, and designated employees.22
House and Senate rules give the two ethics committees the authority to
investigate allegations of wrongdoing by Members, officers, and employees;
adjudicate (judge) evidence of misconduct; to mete in certain instances or to
recommend penalties, when appropriate; and to provide advice on actions
permissible under congressional rules and law.23


19 Examples include U.S. Congress, House Committee on Standards of Official Conduct,
Investigation of Certain Allegations Related to Voting on the Medicare Prescription Drug,thnd
Improvement, and Modernization Act of 2003, report, 108 Cong., 2 sess., H.Rept. 108-722
(Washington: GPO, 2004), p. 38; and U. S. Congress, Senate Select Committee on Ethics,thnd
Korean Influence Investigation, report, 95 Cong., 2 sess., S.Rept. 95-1314 (Washington:
GPO, 1975), pp. 5-6.
20 “Ethics and Criminal Prosecutions,” in Guide to Congress, 5th ed., vol. II (Washington:
CQ Press, 2000), pp. 943-988.
21 “Proposed Amendment of Rule XXV of the Standing Rules of the Senate Relative to the
Jurisdiction of the Committee on Rules and Administration,” Congressional Record, vol.

110, July 24, 1964, pp. 16929-16940; and “Committee on Standards of Official Conduct,”


Congressional Record, vol. 113, April 13, 1967, pp. 9426-9448. The Senate Committee was
renamed the Select Committee on Ethics in 1977. See U.S. Congress, Senate Rules and
Administration Committee, Committee System Reorganization Amendments of 1977, reportthst
to accompany S.Res. 4, 95 Cong., 1 sess., S.Rept. 95-1 (Washington: GPO, 1977), pp. 4-5;
and Congressional Record, vol. 123, February 1, 1977, pp. 3660-3699.
22 “Senate Standards and Conduct,” Congressional Record, vol. 114 , March 22, 1968, pp.

7369-7383 and 7388-7408; and “Standards of Official Conduct,” Congressional Record,


vol. 114, April 3, 1968, pp. 8776-8812. These rules of conduct, as amended by rules changes
and law since 1968, are now found in House Rules XXIII-XXVI and Senate Rules XXXIV-
XXXVIII.
23 U.S. Congress, Senate, Senate Manual Containing the Standing Rules, Orders, Laws, and
Resolutions Affecting the Business of the United States Senate, S. Doc. 107-1, 107th Cong.,st

1 sess. (Washington, GPO, 2002), pp. 108-118 (Standing Order 80); and U.S. Congress,


House, Constitution, Jefferson’s Manual and Rules of the House of Representatives of thethnd
United States, One Hundred Ninth Congress, H.Doc. 108-241, 108 Cong., 2 Sess.
(Washington, GPO, 2005), pp. 561-585 (House Rule XI, cl. 3).

Expulsion and Censure of Members of Congress
Expulsion is the only punishment expressly mentioned in the Constitution, but
the Constitution gives each house authority to “punish its Members for disorderly
Behaviour.”24 Of 29 potential expulsion cases in the history of the Senate, 15
Senators have been expelled: one in 1797, and 14 during the Civil War for “support
of rebellion.”25 Of 29 potential House expulsion cases, five Representatives have
been expelled: three Representatives were expelled during the Civil War; one
Representative was expelled in 1980, following his conviction in the Federal Bureau
of Investigation’s Abscam sting operation; and one Representative was expelled in

2002 following his conviction for bribery, racketeering, fraud, and tax evasion.26


Other punishments have been used to discipline Members, including censure,
the most serious punishment short of expulsion. Nine Senators and 22
Representatives have been censured as a punishment for wrongdoing, ranging from
assault to obstruction of the legislative process to financial misconduct. In addition,
eight Representatives have been reprimanded by the House since 1976, when this
punishment was first used as a sanction. One Senator has been reprimanded by the
Senate Ethics Committee through a letter from the committee. Reprimand is
considered a less severe punishment than censure.27


24 U.S. Constitution, art. I, §5, cl. 2.
25 “Cases of Expulsion in the Senate,” in Guide to Congress, 5th ed., vol. II (Washington:
CQ Press, 2000), p. 924. There have actually been 30 Senate expulsion attempts because the
Senate twice considered expulsion resolutions against Sen. Louis Wigfall (D-TX) in 1861
for “support of the rebellion” during the Civil War. He ultimately was expelled from the
Senate in 1861. The expulsion of Sen. William K. Sebastian (D-AR) for “support of the
Confederate insurrection” in 1861 was revoked after his death. The most recent potential
Senate expulsion cases were in 1982 and 1995. One involved a Senator who had been
convicted of bribery in the Federal Bureau of Investigation’s Abscam sting operation. The
other involved a Senator under investigation by the Select Committee on Ethics for sexual
misconduct charges and alterations to subpoenaed documents. Both Senators resigned before
a potential expulsion vote. See also CRS Report 93-875, Expulsion and Censure Actions
Taken by the Full Senate Against Members, by Jack Maskell
26 “Cases of Expulsion in the House,” in Guide to Congress, 5th ed., vol. II (Washington: CQ
Press, 2000), p. 926.
27 U.S. Congress, House Committee on Standards of Official Conduct, Historical Summary
of Conduct Cases in the House of Representatives, November 9, 2004,
[http://www.house.gov/ethics/Historical_Chart_Final_Version.htm], visited January 15,th
2008; and “Seating and Disciplining Members,” in Guide to Congress, 5 ed., vol. II
(Washington: CQ Press, 2000), pp. 915-942.

House Committee on Standards of
Official Conduct28
In the 110th Congress, the House Committee on Standards of Official Conduct
is composed of 10 Members, five from each party. A substantial part of the
committee’s work is advisory and is performed by its Office of Advice and
Education, which provides information and guidance to House Members, officers,
and employees on House rules and standards of conduct applicable in their official
capacities.29
Pursuant House Rule X, clause 5(a)(4)(A) and (B); Rule XI, clause 3; and the
Ethics Reform Act of 1989 (P.L 101-194, §803(b), (c), and (e), 103 Stat. 1774), the
committee’s investigative and adjudicative functions are “bifurcated,” or separated.30
At the beginning of each Congress, the Speaker and the minority leader appoint a 20-
person pool of Members (10 from each party) not serving on the House Standards of
Official Conduct Committee, who are then to be available to serve on any
investigative subcommittee formed during that Congress.
An investigative subcommittee is the initial phase in the bifurcation process. If
such a subcommittee finds a violation of the House rules has occurred and transmits
a Statement of Alleged Violations (formal charges) to the chair and ranking member
of the House Standards Committee, the committee chair is then required to appoint
an adjudicative subcommittee. The members of this subcommittee are those
Standards of Official Conduct Committee members who were not members of the
investigative subcommittee and also the chair and ranking member of the committee.
This subcommittee judges the evidence in the Statement of Alleged Violations and
recommends sanctions, if the subcommittee concludes they are warranted.
Complaints alleging House rules violations can only be filed with the committee
by a Member of the House or the new Office of Congressional Ethics (OCE)
discussed below. Complaints not filed by the OCE or Members of the House must
have a current Representative certify in writing that the information is in good faith
and warrants consideration by the committee. Prior to 1997, members of the public
(under certain conditions) as well as Members of the House could file a complaint
against a Member, officer, or employee of the House. That changed in September
1997 when the House amended the rule governing complaints filed by individuals
who are not Members.31


28 For a history of the House Committee on Standards of Official Conduct, refer to CRS
Report 98-15, House Committee on Standards of Official Conduct: A Brief History of Its
Evolution and Jurisdiction, by Mildred Amer.
29 This office was created by the Ethics Reform Act of 1989 (P.L 101-194, 103 Stat. 1775-

1776).


30 The bifurcation process has been used in 18 committee investigations.
31 “Implementing the Recommendations of the Bipartisan Ethics Task Force,” Congressional
Record, vol. 143, September 18, 1997, pp. 19302-19340.

The House, by resolution, may direct the Standards of Official Conduct
Committee to conduct a specific investigation. There is also a “statute of limitations”
for investigations.32
Investigations
The committee’s first publicly announced action was in 1968 at the request of
the then-Speaker John McCormack.33 This was an inquiry into roll-call voting
irregularities that caused some Members who were out of town to be recorded as
having voted. The committee concluded that problem was not deliberate and was the
result of an overworked tally clerk. It also urged the House to install a modernized
system of voting.34
The next announced committee action, in 1975, was its first investigation into
allegations of misconduct by a Member, and resulted in a reprimand of the Member
the following year.35 Since then, seven other Members have been reprimanded by the
House, and there has been public information on cases involving approximately 75
other Representatives.36 The punishments ranged from the expulsion of two
Members, to censure, admonishment, rebuke, and “Letters of Reproval” and “Letters
of Admonition.”37 Some 22 Members have left the House after court convictions,


32 The committee is not permitted to investigate, under most circumstances, alleged
violations that occurred before the third previous Congress.
33 “Communication from the Committee on Standards of Official Conduct,” Congressional
Record, vol. 115, June 19, 1969, p. 16629; and Richard Lyons, “House Set Probe on Ghost
Vote,” The Washington Post, Times Herald, October 2, 1968, p. A7.
34 Ibid., and “House Group Urges Roll-Call Reform,” The New York Times, December 19,
1968, p. 33. For information on the House electronic voting system that was established
after the roll-call voting irregularities, see CRS Report RL34366, Electronic Voting System
in the House of Representatives: History and Evolution, by Jacob Straus.
35 See [http://www.house.gov/ethics/Historical_Chart_Final_Version.htm] for a historical
summary of cases; prepared by the House Committee on Standards of Official Conduct.
There are a number of complaints that the committee considers, but does not investigate.
The committee sometimes does not acknowledge such cases, even if they are reported in the
press. Therefore, it is difficult to ascertain a precise number of “cases” considered by the
committee.
36 Included in this count is information released either by the committee or by Members of
the House who were the subject of committee action.
37 A public Letter of Reproval is a sanction created by the committee and first used in 1987.
It is an administrative action authorized under the rules of the House and issued as part of
a public report from the committee after a formal investigation. The Committee on
Standards of Official Conduct has resolved several complaints by means of a letter to a
respondent without a formal investigation. According to the committee, “In the past such
letters have not been formally termed ‘letters of admonition,’ but this term accurately
describes the substance of these letters.” Unlike a Letter of Reproval, a Letter of
Admonishment is not specifically authorized under House rules. Such a letter was sent to
a Member of the House in 2004. U.S. Congress, Committee on Standards of Officialthnd
Conduct, Summary of Activities One Hundred Eighth Congress, 108 Cong., 2 sess., pp.
(continued...)

after inquiries were initiated, or after charges were brought by the committee, but
before House action could be completed. Departure from the House ends a case
because the committee does not have jurisdiction over former Members. In some
instances, no inquiry was conducted, or allegations were dismissed.
The committee has also conducted wide-ranging inquiries involving more than
one Member. In the 102nd Congress (1991-1993), it considered allegations involving
House post office operations as well the Member payroll-disbursing office and
checking-account service known as the “House Bank.”38 In the latter case, the
committee found 325 current or former Members had overdrafts from the bank
during the 39-month period of review, but no further action was taken by the House
against Members. The committee formed a task force to review accusations about the
post office, but took no additional action. Previously, it had deferred any action in the
post office matter at the request of the Department of Justice, which prosecuted
several sitting and former Members.
The committee has also investigated allegations involving House pages, so-
called phantom voting by absent Members, improper alterations of House documents,
and improper political solicitations.39
Recent Major Procedural Changes40
On March 11, 2008, the House adopted H.Res. 895 and created the Office of
Congressional Ethics (OCE).41 This office, composed of six non-Members of the


37 (...continued)

62-68.


38 U.S. Congress, House Committee on Standards of Official Conduct, Summary of Activities
One Hundred Second Congress, 102nd Cong., 2nd sess., H.Rept. 102-1081 (Washington:
GPO, 1993), pp. 9-12.
39 During the 97th, 98th, and 109th Congresses, the committee investigated accusations about
the relationship between some Members and House pages. Two Members were disciplinedth
as a result of the page investigation in the 98 Congress. The Members involved are
included in the count of 83 Members who have been the subject of an inquiry/investigation
and discipline by the committee and the House. See U.S. Congress, House Committee onth
Standards of Official Conduct, Summary of Activities Ninety-Eighth Congress, 98 Cong.,nd
2 sess., H.Rept. 98-1174 (Washington: GPO, 1984), pp. 3-4; and U.S. Congress, House
Committee on Standards of Official Conduct, Summary of Activities One Hundred Ninththnd
Congress, 109 Congress, 2 sess., H.Rept. 109-744 (Washington: GPO, 2007), pp. 18-20.
40 The provisions in ethics reform legislation enacted in the 110th Congress (H.Res. 6, House
Rules for the 110th Congress, and P.L. 110-81, the Honest Leadership and Open Government
Act of 2007) contained no provisions affecting enforcement procedures of the House
Committee on Standards of Official Conduct.
41 “Establishing An Office of Congressional Ethics,” Congressional Record, vol. 154, March
11, 2008, pp. H1515-H1536. The OCE is discussed in more detail later in this report. See
also Rep. Michael E. Capuano, “Dear Colleague” letter, December 19, 2007,
[http://www.house.gov/ capuano/ news/2007/121907ethics/D e a r % 2 0 C o l l e a gu e %20Letter.
pdf], visited October 29, 2008; and U.S. House, Special Task Force on Ethics Enforcement,
(continued...)

House, is authorized to consider allegations of wrongdoing by Representatives and
House staff; and when warranted, refer the allegations to the House Committee on
Standards of Official Conduct for further review.42
Also during the 110th Congress, the House passed a resolution requiring the
Committee on Standards of Official Conduct to act within 30 days when a Member
of the House is indicted or otherwise formally charged with criminal conduct in a
court of the United States.43 If the committee does not empanel an investigative
subcommittee to review the allegations, it must submit a report to the House
describing why it has not done so and detailing what actions, if any, it has taken in
response to the allegations. This provision has not been incorporated in House rules
and will expire at the end of the 110th Congress.44
In the 109th Congress, the rules of the House adopted on January 4, 2005,
included several new provisions affecting the Standards of Official Conduct
Committee’s investigative procedures.45 The changes required the committee to
notify any Member, officer, or employee whose conduct was referenced in a
complaint against another Member, officer, or employee.46 In addition, unless the
chair or ranking member placed a complaint on the committee’s agenda within 45
days of receipt, the committee was no longer required to act on such complaint.47 The


41 (...continued)
[http://www.house.gov/ capuan o / n e w s / 2007/121907ethics/Ethics%20Report.pdf],vi sited
October 29, 2008.
42 Allegations can only be considered when presented in writing from two of the six OCE
board Members. The House of Representatives and the Committee on Standards retain the
ultimate authority for the discipline of House Members and staff.
43 “Directing the Committee on Standards of Official Conduct to Respond to the Indictment
of Any Member of the House,” Congressional Record, daily edition, vol. 153, June 5, 2007,
pp. H5971-H5976, and H5978-H5979.
44 This information was verified on October 24, 2008, in a telephone call to the office of the
House Parliamentarian.
45 “Rules of the House,” Congressional Record, daily edition, vol. 151, January 4, 2005, pp.
H7-H31.
46 If that complaint was to be disposed of in a letter not requiring House action, the Member,
officer, or employee whose conduct the letter referred to would have had the options to
review the content of the letter and accept it, contest it in writing (in which case, those views
would have been part of the official public record), or contest it by requesting in writing that
the committee establish an adjudicatory subcommittee to review the allegations. If an
adjudicatory subcommittee had been established for the original complainant, the letter
would not have been issued, since its issuance would have been considered “a statement of
alleged violations” (formal charges).
47 The chair and ranking member could have also requested the committee to extend the
applicable 45-day period (or five legislative days, whichever is longer) by one additional 45-
day period.

new provisions, however, were rescinded and the former ones reinstated on April 27,

2005.48


With the restoration of the original rule for action on a complaint, inaction by
the chairman or ranking member on a properly filed complaint within 45 days
automatically sends the complaint to an investigative subcommittee (House Rule XI,
cl. 3(k)).
In February 1997, the House established the 10-member bipartisan Ethics
Reform Task Force to review the existing House ethics process and recommend
reforms.49 Co-chaired by Representatives Robert Livingston and Benjamin Cardin,
the task force held hearings and issued a report.50 The House on September 18, 1997,
adopted H.Res. 168, after amendment, incorporating recommendations of the Ethics
Reform Task Force.51
The new rules that the House adopted:
!changed the way individuals who are not Members of the House file
complaints with the committee by requiring them to have a Member
of the House certify in writing that the information is submitted in
good faith and warrants consideration by the Committee on
Standards of Official Conduct;52
!decreased the size of the committee to 10 members from 14;
!established a 20-person pool of Members (10 from each party) to
participate in the work of the committee as potential appointees to
any investigative subcommittee that the committee might establish;53


48 “Amending the Rules of the House,” Congressional Record, daily edition, vol. 151,
April 27, 2005, pp. H2616-H2626; and Carl Hulse, “House Overturns New Ethics Rule as
G.O.P. Relents,” The New York Times, April 28, 2005, pp. A1, A21. See also CRS Reportth
RS22034, House Ethics Rules Changes in the 109 Congress, by Mildred Amer.
49 Congressional Record, vol. 143, February 12, 1997, pp. 2058-2059.
50 U.S. Congress, House Ethics Reform Task Force, Revisions to the Rules of the House and
the Rules of the House Committee on Standards of Official Conduct, hearings, 105th Cong.,st

1 sess., March 4 and June 20, 1997 (Washington, GPO, 1997); and U.S. Congress, House,thst


Report of the Ethics Reform Task Force on H. Res. 168, committee print, 105 Cong., 1
sess. (Washington: GPO, 1997).
51 “Implementing the Recommendations of the Bipartisan House Ethics Task Force,”
Congressional Record, vol. 143, September 18, 1997, pp. 19302-19340.
52 This procedure superseded a process whereby individuals who were not Members of the
House could file complaints with the Standards Committee only after they had submitted
allegations to at least three House Members, who had refused in writing to transmit the
complaint to the committee.
53 The first pool of 20 Members selected to serve on investigative committees of the
Standards of Official Conduct Committee was appointed on November 13, 1997. See
(continued...)

!required the chair and ranking minority member of the committee to
determine within 14 calendar days or 5 legislative days, whichever
comes first, if the information offered as a complaint meets the
committee’s requirements;54
!allowed an affirmative vote of two-thirds of the members of the
committee or approval of the full House to refer evidence of
violations of law disclosed in a committee investigation to the
appropriate state or federal law enforcement authorities;55
!provided for a nonpartisan, professional committee staff; and
!allowed the ranking minority member on the committee to place
matters on the committee’s agenda.
Senate Select Committee on Ethics56
Like its House counterpart, the Senate Ethics Committee is bipartisan. It isth
composed of six Members in the 110 Congress, three from each party. It, too, has
a disciplinary function as well as an advisory one, although it does not have a formal
Office of Advice and Education. Unlike the House committee, the Senate Ethics
Committee does not separate its investigative and adjudicatory functions, and it has57
no “statute of limitations” for investigations of alleged past violations.
There are no restrictions on who can file a complaint or allegation with the
committee. Once a sworn complaint has been received or the committee has initiated
an inquiry into possible wrongdoing by a Senator or Senate officer or employee,
committee rules establish a multi-stage process.58 The committee first begins a
preliminary inquiry. If there is substantial evidence of a violation, charges are
brought, and the committee begins an adjudicative process to determine the merits
of the charges and appropriate sanctions.


53 (...continued)
Congressional Record, vol. 143, November 13, 1997, p. 26569. House leaders have
appointed a 20-person pool of Members in each Congress since then.
54 Previously, there was no specific time limit for this determination.
55 With the exception of a brief period in 1966, only a vote by the full House previously
permitted referrals of possible violations of law to the appropriate authorities.
56 For a history of the Senate Select Committee on Ethics, refer to CRS Report RL30650,
Senate Select Committee on Ethics: A Brief History of Its Evolution and Jurisdiction, by
Mildred Amer.
57 The Senate Select Committee on Ethics website [http://ethics.senate.gov/] displays the
most recent Senate Ethics Manual as well as financial disclosure and travel forms, press
statements, and other useful information.
58 Senate Standing Order No. 80, sec. 2(d).

Investigations
Since its creation in 1964, the Senate Select Committee on Ethics has
considered allegations involving approximately 39 Senators. This number comes
from information released by the committee through press releases and committee
documents, or from information released by those Senators who were under
investigation. All but three of the committee’s actions occurred after 1977.59 As a
consequence of committee investigations, two Senators resigned before expected
expulsion (one for a bribery conviction and the other following charges of sexual
misconduct and allegations of alterations to subpoenaed documents); one Senator
was censured by the full Senate; and two Senators were denounced by the full Senate
(a form of censure) for financial misconduct. One Senator was rebuked by the Senate
Ethics Committee for improper acceptance of gifts; one Senator was “severely
admonished” by the committee for the acceptance of and failure to disclose
prohibited gifts; and one Senator was “admonished” by the committee for “conduct
reflecting discreditably on the Senate,” including using campaign funds for legal
expenses without the required prior approval of the Senate Select Committee on
Ethics.60 These latter actions were accomplished through letters to the Senators from
the committee and through press releases. One Senator, involved in the case known
as “Keating Five,” was reprimanded by the Ethics Committee. The other four
Senators in the Keating Five case were criticized in written statements from the
committee for showing poor judgment and giving the appearance of acting
improperly.61 In some of the 38 cases acknowledged by the Ethics Committee or by
Senators who were the subject of some form of an ethics inquiry, complaints were
dismissed or no disciplinary or official action was taken by the committee or the
Senate. 62


59 The committee sometimes acts on complaints that do not reach a formal investigation
stage. The committee usually does not acknowledge such cases even if they are reported by
the press. Therefore, it is difficult to obtain a precise number of “cases” considered by the
committee. U.S. Senate, Select Committee on Ethics, “Statement By Senators Boxer and
Cornyn, the Chair and Vice Chair of the Senate Ethics Committee,” press release, March 5,

2007, [http://ethics.senate.gov/downloads/pdffiles/pr030507.pdf], visited January 23, 2008.


60 See, for example, U.S. Senate, Select Committee on Ethics, “Public Letter of
Admonition,” press release, February 13, 2008, [http://ethics.senate.gov/], visited February

20, 2008.


61 This case, which lasted from 1989-1991, involved the actions of the five Senators in
connection with the Lincoln Savings and Loan Association. See “Ethics and Criminalth
Prosecutions,” in Guide to Congress, 5 ed., vol. II (Washington: Congressional Quarterly,

2000), pp. 962-963.


62 The number of cases includes those Senators who acknowledged publicly that they were
the subject of some form of Senate Ethics Committee action, including notification that the
committee found allegations against them to be unfounded. Sometimes such a notification
has only been released by the Senator involved and not the committee. There is no single
comprehensive official source for documenting all of the cases considered by the Senate
Select Committee on Ethics. Good resources include “Congressional Ethics Cases, 1976-nd

1980,” in Congressional Ethics, 2 ed. (Washington: Congressional Quarterly, 1980), pp.th


21-47; “Ethics and Criminal Prosecutions,” in Guide to Congress, 5 ed., vol. II
(continued...)

Wide-ranging inquiries/investigations involving more than one Senator and
announced by the Ethics Committee dealt with special car-leasing arrangements for
Senators, the introduction of legislation favorable to Chinese seamen, alleged illegal
campaign contributions from the Gulf Oil Company, alleged Korean influence
peddling, the unauthorized disclosure of classified information about the Senate’s
consideration of the Panama Canal Treaty, and several discrimination issues.63 No
disciplinary action was taken in any of those cases.
Recent Major Procedural Changes64
In 1993, the Senate established the bipartisan Senate Ethics Study Commission
to study the procedures of the Select Committee on Ethics.65 In March 1994, the
commission issued its final report and recommendations.66 The recommendations
languished, however, until the Senate adopted S.Res. 222 on November 5, 1999.67
S.Res. 222 streamlined the Senate’s ethics enforcement process and required the
committee to educate Members, officers, and employees about the laws, rules, and
regulations applicable in their official duties. The major provisions/changes are
summarized here:
!The previous multi-stage process of an “initial review” before a
“preliminary inquiry” was replaced by the single-phase “preliminary
inquiry.” If there is substantial evidence of a violation, charges are
issued and an “adjudicative review” is conducted to determine the
merits of charges and appropriate punishment. This phase may
include a hearing. The changes did not affect the ability of outside


62 (...continued)
(Washington: Congressional Quarterly, 2000), pp. 915-988, supplemented by various
editions of Congress and the Nation, published quadrenially by Congressional Quarterly
Inc.; and Mary Ann Noyer, Catalogue of Congressional Ethics Cases, 1796-1992
(Washington: The Brookings Institution, 1995).
63 “Congressional Ethics Cases, 1976-1980,” in Congressional Ethics, 2nd ed. (Washington:
Congressional Quarterly, 1980), pp. 21-47.
64 Note that provisions in P.L. 110-81, the Honest Leadership and Open Government Act of
2007, contained no provisions affecting enforcement procedures of the Senate Select
Committee on Ethics.
65 S.Res. 111, agreed to in the Senate May 21, 1993; “Authorizing the Senates Ethics Study
Commission,” Congressional Record, vol. 139, May 21, 1993, pp. 10787-10788. See also
Helen Dewar, “Bipartisan Panel to Study Senate’s Ethics Procedures,” The Washington
Post, March 4, 1993, p. A8.
66 U.S. Congress, Senate, Ethics Study Commission, Recommending Revisions to the
Procedures of the Senate Select Committee on Ethics, Report to the Senate Leadershiprdnd
Pursuant to S.Res. 111, 103 Cong., 2 sess., S.Prt. 103-71 (Washington: GPO, 1994); and
Stephen Gettinger, “Senate Ethics Revision Process,” Congressional Quarterly Weekly
Report, vol. 54, March 5, 1994, pp. 522-523.
67 “Senate Ethics Procedure Reform Resolution of 1999,” Congressional Record, vol. 145,
November 5, 1999, pp. 28834-28843.

groups to file allegations against a Member, officer, or employee of
the Senate.
!The changes provided a uniform set of potential sanctions for rules
violations, to be used alone or in combination.68 These sanctions
include financial restitution, referral to a party conference (regarding
seniority or positions of responsibility), censure, and expulsion. The
Ethics Committee retained the flexibility to propose other penalties
and was authorized to issue a reprimand to an individual without his
or her consent (as had been required previously) after the
opportunity for a hearing and with the right of appeal to the Senate.
!The changes provided for public or private “Letters of Admonition”
from the Ethics Committee. These letters, which previously had
been used by the committee, are not considered a form of discipline.
!The reforms added financial restitution to the possible sanctions (in
addition to suspension and dismissal) that might be made against a
Senate officer or employee.69
Proposals For Outside/Independent Enforcement of
Congressional Rules of Conduct
In seeking to be fair to Members, and not to pre-judge them or prejudice the
consideration of an allegation, the House and Senate ethics committees have operated
quietly over the years. However, they often have been perceived to be slow or
reluctant to investigate and discipline colleagues, and have been criticized on the
basis of that perception.70
As noted earlier, Senator Fulbright’s 1951 resolution called for creation of an
ethics commission of private citizens appointed by the Speaker and the President pro
tem. The idea of an outside entity involved in oversight of congressional ethics
existed long before the ethics committees were created in the 1960s.


68 These sanctions were similar to ones already contained in committee rules, but provided
for the payment of restitution as a penalty and emphasized consistency in the wording of the
various types of punishment.
69 The Senate has previously imposed monetary sanctions to remedy financial wrongdoing
only by Senators.
70 The committees have throughout their existence been criticized as “watchdogs without
teeth.” See, for example, Robert Sherrill, “We Can’t Depend on Congress to Keep Congress
Honest,” The New York Times Magazine, July 19, 1970, pp. 5-7, 13-14; Jerry Landauer,
“Senate Ethics: Hear No Evil, See No Evil,” The Washington Star, September 19, 1976, p.
E3; “Got Ethics?” (editorial), Roll Call, June 25, 2001, p. 4; Helen Dewar, “Ethics: Can the
Senate Police Its Own?” The Washington Post, February 5, 2002, p. A2; Norman Ornstein,
“The Senate Is Unable to Police Itself,” Roll Call, March 8, 2006, p. 6; and “Weak Reforms”
(editorial), Roll Call, March 20, 2006, p. 4. .

Since the creation of the House and Senate ethics committees, there have been
numerous proposals for investigative and enforcement mechanisms to supplement
or replace the ethics committees.71 Some proposals have included an Office of Public
Integrity or independent ethics commissions or offices, within the legislative branch,
composed of incumbent or former Members of Congress, retired judges, private
citizens, or a combination of these.72
During the 103rd Congress, in February 1993, the Joint Committee on the
Organization of Congress held hearings on the congressional ethics process.73 Sitting
and former Members of Congress as well as congressional scholars discussed the
pros and cons of entities outside Congress assisting the ethics committees in the
enforcement of congressional rules of conduct. Subsequently, the House Members
on the committee recommended that “the Committee on Standards of Official
Conduct should be authorized to use, on a discretionary basis, a panel of non-
Members in ethics cases.”74 No further action was taken.
During the 105th Congress, the House Ethics Reform Task Force, co-chaired by
Representatives Livingston and Cardin, considered the use of “distinguished private
citizens” (including former Members of the House and judges) in the ethics process.75
Some witnesses before the task force had suggested the participation of “outsiders”
would enhance public trust and confidence and minimize partisanship.76
However, task force members expressed concern that the use of private citizens
would interfere with the constitutional responsibility of each House to discipline its
Members. A majority of the task force also believed that incumbent House Members


71 For a discussion of creating such entities, as well as the constitutional issues, see CRS
Report RL33790, “Independent” Legislative Commission or Office for Ethics and/or
Lobbying, by Jack Maskell and R. Eric Petersen.
72 See, for example, John Gregg, “Independent Board to Police Members?” Roll Call,
August 21, 1988, pp. 3, 18; Glenn Simpson, “Non-Senators Proposed to Be Ethics
Panelists,” Roll Call, October 8, 1991, pp. 1, 27; Dennis Thompson, “Why Congressional
Ethics Committees Are Unethical,” The Brookings Review, vol. 13, no. 4, Fall 1995, pp. 44-

48; Norman Ornstein, “Put Congressmen Emeriti on Ethics Panels,” Wall Street Journal,


May 28, 1991, p. A22; Juliet Eilperin, “Debate Joined Over Outside Ethics Panel for
House,” Roll Call, February 10, 1997, p. 10; Norman Ornstein, “Use Former Members, Staff
to Filter Ethics Complaints,” Roll Call, February 4, 2004, p. 6; and “Locking Up the Ghost
of Congress Past” (editorial), The New York Times, March 3, 2007, p. A26.
73 U.S. Congress, Joint Committee on the Organization of Congress, Ethics Process,
hearings, 103rd Cong., 1st sess., February 16 and February 23, 1993 (Washington: GPO,

1993).


74 U.S. Congress, Joint Committee on the Organization of Congress, Organization of
Congress, final report, 103rd Cong., 1st sess., H.Rept. 103-413 (Washington: GPO, 1993),
pp. 12-13.
75 U.S. Congress, House, Report of the Ethics Reform Task Force on H. Res. 168, committee
print, 105th Cong., 1st sess. (Washington: GPO, 1997), p. 6.
76 Ibid.

better understand the practices of the House, and that Members accused of
misconduct should be judged by their peers.77
Accordingly, the task force recommended, and the House adopted, the proposal
for the appointment of a bipartisan reserve “pool” of House Members each Congress
to serve on any House Standards of Official Conduct Committee investigative
subcommittee when needed.78 That is still the practice in the House.
There was a high level of interest in an independent ethics authority in the 109th
Congress (2005-2007) when numerous bills were introduced.79 Nonetheless, in
March 2006, the Senate Committee on Homeland Security and Governmental Affairs
voted against a proposal to establish an independent office to enforce congressional
ethics and lobbying laws. Subsequently, the Senate defeated a similar amendment to
a pending gift and lobbying reform measure (S. 2349).80
Before and after the convening of the 110th Congress, discussions continued
about “ethics reform” and enforcement.81 On January 18, 2007, during consideration
of the Legislative Transparency and Accountability Act of 2007 (S. 1), the Senate
again rejected an amendment to establish a Senate Office of Public Integrity.82
Creation of the House Office of Congressional Ethics83
On March 11, 2008, the House created the Office of Congressional Ethics
(OCE), an independent House office to review and submit formal complaints of
wrongdoing by Members and officers of the House to the Committee on Standards


77 Ibid.
78 “Implementing the Recommendations of the Bipartisan House Ethics Task Force,”
Congressional Record, vol. 143, September 18, 1997, pp. 19302-19340.
79 See for example, H.R. 97, H.R. 4799, H.R. 4948, H.R. 5677, S. 2259, and S.Con.Res. 82.
Some of the bills contained only an independent ethics authority; others contained an
authority but additionally proposed wider changes, such as gift and lobbying reform.
80 “Legislative Transparency and Accountability Act of 2006,” Congressional Record, daily
edition, vol. 152, March 28, 2006, pp. S2440-S2254 and S2459; and Jeffrey Birnbaum,
“Ethics Office for Hill Rejected,” The Washington Post, March 3, 2006, pp. A1, A8.
81 “Most Ethical Congress” (editorial), Roll Call, November 27, 2006, p. 4; Elana Schor,
“Ethics Reformers in House Push For Independent Panel,” The Hill, December 6, 2006; Carl
Hulse, “Democrats in Congress Consider Outside Ethics Panel,” The New York Times,
December 13, 2006, p. A19; and Sen. Barack Obama, “A Chance to Change the Game,” The
Washington Post, January 4, 2007, p. A17.
82 “Legislative Transparency and Accountability Act of 2007,” Congressional Record, daily
edition, vol. 153, January 18, 2007, pp. S743-S744.
83 According to a press report, “government reform advocates” may push for the creation
of a similar ethics office in the Senate. See Jennifer Yachim, “Stevens Case Prompts New
Ethics Push,” Roll Call, October 30, 2008, pp. 3, 21. See also
[ h t t p : / / www.democracy21.org/index.asp?T yp e=B_PR&SEC={AC81D4FF-047 6 -4 E 2 8 -B
9B1-7619D271A334}&DE={A041FBE1-5797-4F7A-80EE-806336BBF26A}], visited
October 30, 2008.

of Official Conduct.84 The adoption of H.Res. 895 followed the recommendations
of the Special Task Force on Ethics Enforcement, established by Speaker of the
House Nancy Pelosi and Republican Leader John Boehner in January 2007 to
consider whether the House should create an “outside” ethics enforcement entity.85
Chaired by Representative Michael Capuano, the task force held a number of
executive briefings and, on April 19, 2007, a public hearing.86 During the course of
its deliberations, there were numerous editorials, opinion pieces, and articles about
its work.87
“Congressional ethics” experts and witnesses from public interest groups
testified at the public hearing on the pros and cons of an independent ethics
mechanism in the House as well as the constitutionality of such an entity.88 Some
witnesses urged that individuals outside Congress should be allowed to file


84 U.S. Congress, House, Committee on Rules, Providing for the Adoption of the Resolution
( H.Res. 895), Establishing Within the House of Representatives An Office of Congressionalrdnd
Ethics and For Other Purposes, report to accompany H.Res. 1031, 110 Cong., 2 sess.,
H.Rept. 110-547 (Washington: GPO, 2008); “Establishing An Office of Congressional
Ethics,” Congressional Record, vol. 154, March 11, 2008, pp. H1515-H1536; and Carl
Hulse, “House Creates A Panel to Watch Over Lawmakers’ Behavior,” The New York
Times, March 12, 2008, p. 1.
85 Rep. Michael E. Capuano, “Dear Colleague” letter, December 19, 2007,
[ h t t p : / / www.house.go v/ capuano/ news/2007/121907ethics/Dear%20Colleague% 2 0 L e t t e r .
pdf] visited October 29, 2008; U.S. House, Special Task Force on Ethics Enforcement,
[http://www.house.gov/capuano/news/2007/121907ethics/Ethics%20Report.pdf], visited
October 29, 2008; and Susan Davis, “Pelosi, Boehner Name Eight Members to Ethics Task
Force,” Roll Call, February 1, 2007, pp. 3, 22. The other Members on the task force were
Reps. Robert Scott, Betty McCollum, David Price, Lamar Smith (ranking member), Dave
Camp, David Hobson, and Todd Tiahrt. This is the third House ethics task force created
since the House Committee on Standards of Official Conduct was established in 1967.
86 U.S. House, Special Task Force on Ethics Enforcement, Public Hearing on Ethics
Process, 110th Cong, 1st sess., April 19, 2007 (unpublished), [http://www.house.gov/
capuano/news/2007/121907ethics/Hearing%20Transcript%20-%20working.pdf], visited
January 15, 2008.
87 See, for example, Susan Davis, “No Consensus Yet for Ethics Task Force,” Roll Call,
June 3, 2007, pp. 1, 32; Susan Davis and Jennifer Yachnin, “Ethics Heads Trade Jabs: Jones,
Hastings Spar Over Jefferson Probe,” Roll Call, June 7, 2007, pp. 1, 27; Meredith McGehee,
“Will Ethics Suggestions Be Real or Cosmetic?” (guest observer), Roll Call, June 14, 2007,
p. 4; Susan Crabtree, “Capuano Bemoans ‘Thankless’ Ethics Job,” The Hill, July 3, 2007,
p. 5; Bob Edgar, “Open Ethics Process Would Be a Good Step” (guest observer), Roll Call,
July 9, 2007; Meredith McGehee, “Ethics Reform Still Has a Long Way to Go,” (guest
observer), Roll Call, September 10, 2007, p. 4; David Laufman, “Outside Panel Won’t
Resolve Core Ethics Problems” (guest observer), Roll Call, September 26, 2007, p. 8; Tory
Newmyer and Jennifer Yachnin, “New Ethics Plan Already Under Fire,” Roll Call.
November 8, 2007, pp. 1, 26; and Norman Ornstein, “New Ethics Proposal Isn’t Perfect, but
It’s a Solid Step Forward,” Roll Call, December 5, 2007, p. 6.
88 Ibid. See also Mark Wegner, “Task Force Studying Outside Ethics Regulator Begins
Work,” CongressDaily AM, April 20, 2007, p. 11.

complaints, that there be a regular, timely investigative process for complaints, and
that reporting on the disposition of all complaints should be mandatory.89
On December 19, 2007, Chairman Capuano released a report on behalf of
several task force members and introduced H.Res. 895 to amend House rules and
create an independent Office of Congressional Ethics (OCE), composed of six board
members jointly appointed by House leaders.90 On March 3, 2008, Chairman
Capuano released proposed amendments to H.Res. 895.91 On March 11, 2008, the
measure was considered under a closed, self-executing rule (H.Res. 1031) that the
House agreed to, thereby agreeing to H.Res. 895.92
Current House Members, federal employees, and lobbyists are not eligible to
serve on the board, composed of private citizens with a wide range of professional
experience. The board’s responsibility is to review allegations of misconduct by
Members, officers, and employees of the House and then, if appropriate, to make
recommendations to the Committee on Standards of Official Conduct for its
consideration. 93
Allegations meriting referral to the Committee on Standards of Official Conduct
are to be acted on in accordance with its current rules.94 The committee would then
be required to make a public announcement of its disposition of certain referrals
within specific time frames. H.Res. 895 amended the procedural rules of the
committee (House Rule XI, clause 3).


89 Public Hearings on Ethics Process, [http://www.house.gov/capuano/news/2007/

121907ethics/Hearing% 20T ranscript%20-%20worki ng.pdf].


90 U.S. House, Special Task Force on Ethics Enforcement,
[http://www.house.gov/capuano/news/2007/121907ethics/Ethics%20Report.pdf], visited
OCt. 29, 2008; Subsequently, on February 27, 2008, ranking member Rep. Lamar Smith and
the other Republican Members of the task force introduced H.Res. 1003 to provide increased
accountability and transparency in the Committee on Standards of Official Conduct. See
also Lamar Smith, “A Recipe for Partisan Games” (editorial), USA Today, February 28,

2008, p. 10A.


91 Rep. Michael E. Capuano, “Dear Colleague” letter, March 4, 2008 (copy available from
the author of this report); and Jennifer Yachim, “Revised Ethics Plan Unveiled,” Roll Call,
March 4, 2008, pp. 1, 23.
92 U.S. Congress, House, Committee on Rules, Providing for the Adoption of the Resolution
( H.Res. 895), Establishing Within the House of Representatives An Office of Congressionalrdnd
Ethics and For Other Purposes, report to accompany H.Res. 1031, 110 Cong., 2 sess.,
H.Rept. 110-547 (Washington: GPO, 2008; “Establishing An Office of Congressional
Ethics,” Congressional Record, vol. 154, March 11, 2008, pp. H1515-H1536; and Carl
Hulse, “House Creates A Panel to Watch Over Lawmakers’ Behavior,” The New York
Times, March 12, 2008, p. 19.
93 Former Members and staff of the House could not serve on the board sooner than one year
after leaving office.
94 Referrals to the Committee on Standards of Official Conduct from the OCE must be
without any conclusions on the validity of any allegations.

Other highlights of H.Res. 895 include the following:
!board members will be appointed jointly by the Speaker and the
minority leader;
!board members will serve staggered two-Congress terms and can be
removed only by the Speaker and minority leader acting jointly;
!only one board member from each party may initiate a review by
notifying the other board members in writing;
! a review will be terminated unless at least three board members vote
to advance it;
!there is no new process to allow individuals outside Congress to file
a complaint;95
!a specific timetable and two-phased procedure is established for the
board to consider complaints;
!no cases may be considered until 120 days after enactment of H.Res.
895 and no cases may be referred to the House Committee on
Standards of Official Conduct within 60 days of an election in which
the subject of a referral is a candidate;
!on all matters, the board will act in secrecy and communicate solely
with the House Committee on Standards of Official Conduct;
!the Standards of Official Conduct Committee will consider
recommendations from the board under time limits;
!all final authority to either dismiss a case referred to it or to empanel
an investigative subcommittee will continue to be the responsibility
of the Standards of Official Conduct Committee, thus keeping
responsibility for any investigation and proposed discipline of a
Member or staff under the control of Members of the House;
!no public announcements will be required when neither the board
nor the Standards of Official Conduct Committee find wrongdoing;
and
!the new Office of Congressional Ethics (OCE) will not have
subpoena power.


95 Currently, individuals outside Congress may submit a complaint or allegation by having
a Member of the House certify in writing that the information is submitted in good faith and
warrants consideration by the Committee on Standards of Official Conduct.

The first members of the OCE were appointed in July 2008.96
Issues and Concerns
Both before and after release of the report by Chairman Capuano, public interest
groups, former Members and House staff, and congressional scholars expressed
opinions about the work of the task force. There were three principal areas of
discussion articulated by one or more of these groups: (1) the constitutionality of
involvement of persons not Members of Congress in the ethics process, (2) the lack
of subpoena power for the proposed OCE, and (3) lack of a means for someone other
than a Member or an OCE board member to file an ethics complaint.
Constitutionality of Persons Not Members of Congress in the
Ethics Process. Over time, some observers argued that any involvement of
persons not Members of Congress in the ethics process is an abdication of Congress’s
constitutional authority. Objections and concerns have been raised under both the
clause authorizing each house to discipline its Members and under the Speech and97
Debate Clause. One often-heard opinion is that this would be “straying from the
spirit, if not the letter of the Constitution.”98 One witness indicated that any
discipline, including a letter of admonition, should be subject to review by the full
House and not delegated elsewhere.99
According to Chairman Capuano and the other members of the task force who
issued the report, “Task Force Members were cognizant of these [constitutional]
issues … and were careful to ensure that any proposal strictly adheres to


96 Speaker of the House, “Pelosi, Boehner Announce Appointments to New Office of
Congressional Ethics,” press release, July 24, 2008, [http://speaker.house.gov/
newsroom/pressreleases?id=0762], visited Oct. 29, 2008; and Molly Hooper, “House
Leaders Make Selection for Six-Member Outside Ethics Board,” CQ Today, July 25, 2009,
p. 7. The members are former Representatives David Skaggs (chair), Porter Goss (vice
chair), Karan English, and Yvonne Braithwaite Burke, former House CAO Jay Eagen, and
former professor and chief of staff of the Federal Election Commission Allison Hayward.
The alternates are former Representative and federal judge Abner Mikva and former
Representative Bill Frenzel.
97 U.S. Constitution, art. I, §5, cl. 2, and art. I, §6, cl. 1, respectively. For a discussion of the
constitutional issues relating to outside ethics enforcement, refer to CRS Report RL33790,
“Independent” Legislative Commission or Office for Ethics and/or Lobbying, by Jack
Maskell and R. Eric Petersen; and Don Wolfensberger, “Congress Should Police Itself on
Ethics Violations” (guest observer), Roll Call, January 16, 2007, p. 10. See also,
unpublished testimony of Don Wolfensberger before the Special Task for on Congressional
Ethics Enforcement, [http://www.house.gov/capuano/news/2007/121907ethics/
Hearing%20Transcript%20-%20working.pdf], visited January 15, 2008; Thomas Spulak,
“Outside Panel to Probe Ethics May Run Afoul of the Constitution,” The Hill, December

12, 2007, p. 26; and David Laufman, “Outside Panel Won’t Resolve Core Ethics Problems”


(guest observer), Roll Call, September 26, 2007, p. 8.
98 See, for example, Don Wolfensberger, “Congress Should Police Itself on Ethics
Violations” (guest observer), Roll Call, January 16, 2007, p. 10.
99 Wolfensberger testimony, pp. 30-31.

constitutional precepts.”100 Harvard professor and congressional ethics expert Dennis
Thompson argued that
refusing to delegate some authority is actually irresponsible. It reveals a failure
to face up to the fundamental conflict of interest of any process that has
Members acting as prosecutor, judge and jury in cases involving their own101
colleagues.
A legal analysis in CRS Report RL33790, “Independent” Legislative
Commission or Office for Ethics and/or Lobbying, by Jack Maskell and R. Eric
Petersen, concluded that independent investigative or oversight bodies may not be
empowered to “punish” or discipline but might be the repository for filings
concerning Members of Congress and apparently could investigate and report
allegations of misconduct to the congressional committees.102 Making findings and
recommendations subject to disposition by the Standards of Official Conduct
Committee, as in H.Res. 895, appears not to be a meting of punishment but a fact-103
finding or screening exercise. The Standards of Official Conduct Committee will
retain authority to investigate alleged wrongdoing and recommend punishment, and
the House will retain the authority to discipline a Member.
The Use of Subpoena Power. According to press accounts, giving the new
OCE the power to issue subpoenas was a prominent matter of discussion.104
Chairman Capuano stated that the task force sought the professional opinion of
numerous experts (including the House parliamentarian, House general counsel, and
the Congressional Research Service), and considered giving the OCE direct or
“indirect” subpoena power.105 H.Res. 895 does not include this authority.106


100 U.S. House, Special Task Force on Ethics Enforcement, [http://www.house.gov/
capuano/news/2007/121907ethics/Ethics%20Report.pdf], p. 6.
101 Dennis F. Thompson, “Congressional Ethics System Creates Conflict of Interest” (guest
observer), Roll Call, January 17, 2007, p. 8.
102 CRS Report RL33790, “Independent” Legislative Commission or Office for Ethics
and/or Lobbying, by Jack Maskell and R. Eric Petersen.
103 Ibid.
104 See, for example, “An Office for Ethics” (editorial), The Washington Post, December 31,

2007, p. A14; “Help for House Cleaning” (editorial), The New York Times, December 29,


2007, p. A30; Stanley Brand, “New Ethics Office Doesn’t Need Subpoena Power” (guest
observer), Roll Call, December 11, 2007, p. 4; Meredith McGehee, “House Must Give
Outside Ethics Panel Some Teeth” (guest observer), Roll Call, October 25, 2007, p. 4;
Norman Ornstein, “New Ethics Proposal Isn’t Perfect, But It’s a Solid Step Forward” (guest
editorial), Roll Call, December 5, 2007, pp. 6, 30; and Susan Crabtree, “Clash Brews on
Ethics,” The Hill, January 9, 2008, pp. 1, 7.
105 U.S. House, Special Task Force on Ethics Enforcement, [http://www.house.gov/
capuano/news/2007/121907ethics/Ethics%20Report.pdf], p. 17. “Indirect” subpoena power
refers to a subpoena issued by the House Committee on Standards of Official Conduct on
behalf of the OCE.
106 Several measures have been introduced in the House in the 110th Congress calling for
(continued...)

The decision not to include this power was based on various factors, such as
timeliness. Challenges and other delays challenging a subpoena could hinder and
complicate the ethics process contained in H.Res. 895, which envisions prompt
results. If, as expected by the task force, there is ongoing communication between the
board and the House Committee on Standards of Official Conduct, the OCE can
recommend to the committee that it issue a subpoena later in the process, if
necessary.107 The House has already delegated subpoena authority to the Committee
on Standards.
Other Arguments Against the Need for Subpoena Power for OCE.
!The threat of a subpoena from the House Committee on Standards
of Official Conduct later in the process is likely to compel a witness108
to cooperate earlier in the process.
!Failure to cooperate with the OCE will carry strong consequences
for Members and staff, such as possible referral of their case to the
House Committee on Standards of Official Conduct for charges of
false statements, perjury, and obstruction of justice. 109
!The OCE is not intended to replace the House Standards of Official
Conduct Committee. It is designed to help move cases forward in the
House ethics process.110
!The Justice Department often begins inquiries into public corruption
without the use of subpoenas, and the OCE could work in much the
same way.111
!The resolution of past ethics cases has been achieved without the use112
of subpoenas.
!Even without subpoena power, the creation of the OCE would be a
significant improvement to the House ethics process.113


106 (...continued)
some form of an independent ethics commission with subpoena power. See, for example,
H.R. 1136, H.R. 1754, H.R. 2544, H.R. 2822, H.R. 4239, and H.Res. 1018.
107 U.S. House, Special Task Force on Ethics Enforcement, [http://www.house.gov/capuano/
news/2007/121907ethics/Ethics%20Report.pdf], pp. 17-18.
108 Ibid.
109 Ibid.
110 Stanley Brand, “New Ethics Office Doesn’t Need Subpoena Power” (guest observer),
Roll Call, December 11, 2007, p. 4.
111 Ibid.
112 Ibid.
113 Norman Ornstein, “New Ethics Proposal Isn’t Perfect, But It Is a Solid Step Forward,”
(continued...)

Other Arguments In Favor of Subpoena Power for OCE.
!Without this power, the OCE would lack an essential tool. The
subpoena power is provided to every congressional committee and
is an essential element of any serious investigation to determine114
facts.
!The subpoena power is vital for credible independence.115
!Members and staff might not respond to the OCE in a timely manner
without a subpoena and the office could be ignored in its efforts to116
conduct interviews and obtain documents.
!Subpoenas produce the hard facts needed to determine if rules and
laws have been broken.117
!Without this power, witnesses with knowledge of misbehavior may
be unwilling to share information out of friendship or, as staffers, the
fear of potential job loss.118
Ethics Complaints from the Public. Pursuant to H.Res. 895, the trigger for
the OCE to undertake an investigation would be a written request from two members
of its board, one from each party. The ethics task force considered allowing
complaints from the public by requiring a group making a complaint to disclose119
financial donors meeting a certain threshold. However, the task force viewed this


113 (...continued)
pp. 6, 30.
114 This opinion was posted on the website of Democracy 21, [http://www.democracy21.org/
index.asp?Type=B_PR&SEC={9B2564D1-6473-4AB8-822D-95C21046972E], visited
January 17, 2008. Democracy 21 is one in a consortium of groups, including the Campaign
Legal Center, Common Cause, the League of Women Voters, Public Citizen, and U.S.
PIRG, lobbying for changes in congressional ethics rules and processes. On January 16,
2008, Democracy 21 also posted on its website a letter it had sent to Speaker Nancy Pelosi
on behalf of the Campaign Legal Center, the League of Women Voters, and Public Citizen
calling on the House to provide the proposed OCE with subpoena power.
115 “Help for House Cleaning” (editorial), The New York Times, December 29, 2007, p. A30.
116 Meredith McGhee, “Why Subpoena Power is the Key to Real Ethics Reform” (guest
editorial), Roll Call, December 6, 2007, p. 4.
117 Ibid.
118 Norman Ornstein, “New Ethics Proposal Isn’t Perfect, But It’s a Solid Step Forward,”
pp. 6, 30.
119 U.S. House, Special Task Force on Ethics Enforcement, [http://www.house.gov/
capuano/news/2007/121907ethics/Ethics%20Report.pdf], p. 9; Susan Ferrechio, “Pelosi
Expected to Back Proposal to Allow Outsiders to File Ethics Complaints,” CQ Today, June

5, 2007, p. 9; and Susan Davis, “Task Force Mulling How to Handle Outside Complaints,”


Roll Call, June 13, 2007, pp. 3, 32.

idea as problematic and dropped it because of the concerns expressed by some
Members of the House and some outside Congress.120
Allowing groups outside Congress to file an allegation of misconduct has been
debated intermittently. According to press accounts, some groups advocate that such
filing should not require the involvement of a Member of Congress.121 Currently, in
the House, individuals outside Congress may file a complaint with the Standards
Committee only if a Member of the House certifies in writing that the information
submitted is in good faith and warrants consideration by the committee. There are no
similar restrictions in the Senate.
In 1997, the House Ethics Reform Task Force, created during the 105th
Congress, considered changing the then-limited procedures for non-Members to file
ethics complaints and reported,
By opening up the procedures for submitting information offered as a complaint
… it will engender greater public confidence in the process and ameliorate the
perception that the standards process is designed to insulate House Members122
from legitimate allegations of misconduct from outsiders.
The task force recommended a system of direct filing by non-Members of the123
House who could satisfy a “personal knowledge test.” Ultimately, the House
rejected this recommendation because of a concern of “frivolous complaints by
outside groups,” and worries that “each Member will be subject to complaints filed
for political purposes.”124 Instead, the House adopted the current rule requiring all125
non-Members filing a complaint to have a House Member sponsor the complaint.
Indeed, one of the most often-heard arguments against the practice is the
potential for a “flood” of complaints, some frivolous. There has been no
documentation to support this conclusion based on the experience of the Senate and
the limited prior experience of the House, although congressional ethics cases have
mostly originated in the two ethics committees because of public pressure,
information provided to the committees, or media coverage.


120 U.S. House, Special Task Force on Ethics Enforcement, [http://www.house.gov/capuano/
news/2007/121907ethics/Ethics%20Report.pdf], p. 9.
121 Juliet Eilperin, “Ethics Amendments Could Spark Partisan Tug of War,” Roll Call, June

26, 1997, p. 3; and “Ethics Reform a Mixed Bag” (editorial), The Hill, June 25, 1997, p. 6.


Prior to 1997, with some restrictions, a non-Member could file a complaint against a
Member.
122 U.S. Congress, House, Report of the Ethics Reform Task Force on H. Res. 168,
committee print, 105th Cong., 1st sess. (Washington: GPO, 1997), p. 13.
123 Ibid. See also Juliet Eilperin, “Ethics Plan Gets Mixed Reviews at Hearing,” Roll Call,
June 23, 1997, pp. 3, 26; and Norman Ornstein, “Ethics Task Force Plan Offers Modest
Reform To a Broken Process,” Roll Call, July 21, 1997, p. 6.
124 “Implementing the Recommendations of the Bipartisan House Ethics Task Force,”
Congressional Record, vol. 143, September 18, 1997, pp. 19321-19326.
125 Ibid. See also Meredith McGehee, “House of Hubris Shuts Down Public Access to Ethics
Process” (guest observer), Roll Call, October 9, 1995, p. 5.

The Capuano task force was concerned with the possibility of frivolous
complaints and designed the OCE to dispose of such allegations efficiently. It did
not, however, specify its reasons for not providing a process to receive complaints
directly from the public or elaborate on concerns it encountered over the disclosure
of donors to groups filing complaints with the OCE.126
Conclusion
Over the past 40 years, since the creation of the two congressional ethics
committees, there have been periodic evaluations of the committees’ work, occurring
both inside and outside of Congress. What may have seemed acceptable enforcement
of congressional conduct rules in one period of time has not necessarily been viewed
this way at other times. Thus, the episodic debate continues over whether Members
of Congress are doing a good job in following the mandate of the Constitution for
self-disci pline.
Moreover, congressional ethics enforcement has often been linked to an127
evolving appearance-of-impropriety test as well as to changing perceptions of what
constitutes a “conflict of interest.”128 What ethicist Michael Josephson wrote some

16 years ago seems still relevant today:


The core concept of this … ethical consciousness is the demand that public
servants perceive and avoid both actual and apparent wrongdoing.… it is no
defense that an act is legal or that there is no actual impropriety. It is enough that
the conduct creates an inference of wrongdoing in the mind of a reasonable
observer. More than ever, the public demands that its elected officials avoid both
actual and apparent wrongdoing. While more standards of conduct for all
government officials have been enacted to increase public confidence, each new129


law creates a new offense.
126 U.S. House, Special Task Force on Ethics Enforcement, [http://www.house.gov/
capuano/news/2007/121907ethics/Ethics%20Report.pdf], p. 9; and Alexander Bolton,
“Groups Balk At Disclosure,” The Hill, June 21, 2007, pp. 1, 10.
127 See, for example, “How to Judge the Keating Five” (editorial), The New York Times,
November 29, 1990, p. A28; Phil Kuntz, “Senators Ponder How to Treat Appearance of
Wrongdoing,” Congressional Quarterly Weekly Report, vol. 49, January 26, 1991, pp. 228-
230; Glenn R. Simpson, “‘Appearance Standard’ Is it Unfair to Senators?” Roll Call, March
4, 1991, pp. 1, 19; Peter W. Morgan, “The Appearance of Propriety: Ethics Reform and the
Blifil Paradoxes,” in Stanford Law Review, vol. 45, February 1992, pp. 593-621; and U.S.
Congress, House Committee on Standards of Official Conduct, Summary of Activities Onethnd
Hundred Eighth Congress, 108 Cong., 2 sess., H.Rept. 108-806 (Washington: GPO,

2005), pp. 62-68.


128 One practical characterization of term “conflict of interest” has been the “gray area”
between activities that are unmistakably appropriate and those that are obviously improper
and illegal. See Ralph Eisenberg, “Conflict of Interest Situations and Remedies,” Rutgers
Law Review, vol. 13, 1958-1959, p. 666.
129 Michael Josephson, “The Best of Times, the Worst of Times,” Spectrum, The Journal
of State Government, Fall 1992, vol. 65 (Lexington, KY: Council of State Governments),
(continued...)

Evaluations often coincide with or follow periods when numerous or notorious
ethics questions involving Members arise. Many Members, experts, and the public
then seek to define evolving standards and create new enforcement mechanisms.
Sometimes the House or Senate or both chambers act, sometimes they do not act, and
sometimes they act only after a period of prolonged discussion or delay. Nonetheless,
over the past 40 years, Congress has developed more elaborate ethical standards and
more stringent means of self-discipline.


129 (...continued)
p. 36.