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Politician, Police Thyself—A Commentary by Josh Chafetz ‘07

This op-ed originally appeared in the December 2, 2006, issue of The New York Times.

Politician, Police Thyself
By Josh Chafetz

WITH three-quarters of voters in the recent election saying that corruption and scandals helped determine how they cast their ballots, one of the first items of business for the Democrats in January should be putting their Congressional houses in order. Indeed, at the orientation sessions for members-elect last month, they were taught, in the words of incoming Representative Michele Bachmann, “how to hire a chief of staff, how to hire other staff, how to stay out of jail.”

But if the new leadership is going to get serious about ethics, it should think less about the legal system and more about its own internal disciplinary procedures. This has been a year of high-profile Congressional scandals — the names Cunningham, Jefferson and Foley spring to mind — but the reason discontent spreads beyond these members’ districts is a belief that their colleagues simply do not care to police themselves.

The Constitution, however, provides for internal discipline as a major check on Congressional corruption — indeed, a check second in importance only to elections. Article I states that each house may “determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.”

For the founders, this was no idle threat. In England, Parliamentary self-discipline had always been the norm, and to this day it is the House of Commons itself, not the courts, that punishes members for bribery. (The same was true in America until a 1972 Supreme Court decision.) Members of the House of Commons found to have behaved corruptly were frequently expelled and sometimes imprisoned.

From 1690 to 1710, six members were expelled for corruption, and in 1695 the House sent the powerful Henry Guy, a royal favorite, to the Tower of London for more than two months for taking a bribe. In 1721, seven members were expelled for their role in the South Sea Company scandal, and two — including Chancellor of the Exchequer John Aislabie — were sent to the Tower.

In the United States, neither house of Congress has ever imprisoned a member, but it’s clear that they have the power to do so. After all, the chambers have proven quite willing to imprison non-members for contempt (including, as early as the Fourth Congress, in 1795, for attempting to bribe a member of Congress). And the Houses’ power to punish members is explicit, whereas their power to punish non-members — a power upheld by the Supreme Court in 1821 — is inferred from constitutional structure and parliamentary history. If Congress can imprison a non-member despite the lack of clear textual basis, then surely it can imprison a member, over whom it has explicit punishment powers.

Imprisonment aside, the houses have the powers of expulsion (with a two-thirds vote), censure or reprimand, fine and the stripping of seniority. Perhaps more important, they have the power to investigate — to bring corruption to light and thereby shame the member into resigning. If the member proves shameless, the investigation will, at the very least, provide fodder for opponents in the next election.

The two chambers do sometimes use these powers, but their use has been in decline since the courts started hearing cases related to Congressional misconduct in the 1970s. Dan Rostenkowski, who served 15 months in prison for his role in the House Post Office scandal in the 1990s, was never disciplined by the House. Although Tom DeLay was admonished by the House ethics committee, the House never took any action against him, either. Nor has any action yet been taken against William Jefferson, and the House ethics committee did not even open an investigation until after the Department of Justice made clear its interest in him.

Indeed, in the last 20 years, the two houses combined have reprimanded or “denounced” only four members and expelled only one. For three of the members (Representatives Austin Murphy, Barney Frank and Newt Gingrich), the punishments were so weak as to have no appreciable effect on their subsequent political fortunes. And James Traficant was expelled from the House of Representatives only after his conviction in federal court on charges including bribery and racketeering.

At a time when the public has routinely perceived Congress as corrupt, the House and Senate clearly are doing almost nothing to dispel that perception.

The leaders of the 110th Congress should prove that they are serious about governing in a more responsible way by reinvigorating Congressional self-discipline. Each chamber’s ethics committee should have a regular and well-publicized system by which anyone can bring complaints against members.
These complaints should be taken seriously, and if initial investigation turns up evidence sufficient to warrant rational suspicion, the committee should hold open hearings. The hearings should not be dependent on or derivative of criminal investigations launched by the Justice Department. A good model might be the procedures used by the British Parliamentary Commissioner for Standards, an office created in 1995 and given the job of standardizing complaint procedures and conducting initial investigations into allegations of improprieties by members of Parliament.

Perhaps most important, in light of the Mark Foley page scandal, a member who knows of wrongdoing by a colleague and fails to file a complaint should be held in contempt of Congress. Members’ first responsibility is to the American people, not to their colleagues, and they have a duty to us to report any misconduct.

The Republican leadership lost the confidence of voters in part because they were seen to care more about the perks of power than about the duty of representation. The new Democratic leadership can get off on the right foot by making a serious and sustained effort at self-regulation, even if that means some uncomfortable moments around the caucus table.

Josh Chafetz ‘07, a student at the Yale Law School, is the author of the forthcoming “Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions.”