As the 110th Congress convenes, the new Democratic majority in the House of Representatives has made ethics reform a centerpiece of their first 100 hours of control. Certainly, with the ethics scandals from both parties during the last Congress, there is plenty of reason for changing the ethics rules governing the Congress. The list of Members of Congress who have plead guilty to crimes involving their office, or are currently under investigation by the FBI, is embarrassing. Absent real changes, this trend is likely to continue.
Unfortunately, the new version of the ethics rules passed by the new majority will not solve the corruption and ethics issues that exist in the Congress. The new rules are designed to tighten restrictions without addressing the core issues that have made the existing rules ineffective. The result will be tougher rules which are not enforced and which have little effect on corruption in the Congress. Here's why.
First, the new rules continue to rely on Member reporting (or reporting with Member permission) of rules violations. These limitations on who and how a potential violation of the ethics rules can be reported will effectively preclude any meaningful enforcement of the ethics rules. As documents and information from corruption cases from the last few years illustrate, guilty House Members routinely violated existing House gift rules without little fear of an ethics investigation.
The problem was not that the expiring gift limit of $50.00 per gift (with an annual aggregate gift limit of $100.00) was too high. The problem was that there was no effective policing and enforcement of the expiring gift limit. This problem will continue.
Just as the expiring rules did, the new gift ban (effectively reducing the gift limit from $50.00 per gift to $0.00 per gift) will depend on Members to report or permit the reporting of violations by other Members. This will not happen. Members live in glass houses and never want to be the one to set the standard by which they will be judged. Hence, fearful of an allegation that they have taken a banned gift, Members will never make the same allegation against a colleague, even if the violation is clear. There will be unspoken expectation that every Member will simply look the other way.
The result is a pattern and practice of gift violations that are never reported nor investigated until the pattern reaches the level of criminal activity. Then, the FBI or the Department of Justice steps in.
Second, there is no mechanism for enforcing the rules against one significant source of the problem - lobbyist donors. Neither the Committee on Standards of Official Conduct nor the Federal Election Commission have the jurisdiction to detect, investigate and sanction
lobbyist donors who give the gifts in violation of the gift rules.
As a result, those responsible for reporting violations (Members), have every reason not to report (sanctions). As they are unregulated, those responsible for causing the violations (lobbyist donors) do not have any reason to stop. Thus, there is an endless circle of improper gifts by those who cannot be sanctioned to those who have no incentive to report them. Nothing in the new rules solves this problem.
Effective ethics reform in the Congress requires real changes in the reporting procedures for violations, enhanced disclosure requirements for lobbying activities, better transparency of the system, and oversight jurisdiction to enforce the rules against both the donor and the recipient of improper gifts. Anything less is just cosmetics.