Some argue that last year’s scandals, which led to the conviction of two congressmen and several top aides, are evidence that ethics enforcement in Congress works. The actual facts leading up to the convictions, however, are more an indictment of the current process than a testament to its success. A whistleblower who took his case to the media and the U.S. Department of Justice—not the House and Senate ethics committees—uncovered the dealings of lobbyist Jack Abramoff. Neither the House nor the Senate ethics committee has indicated publicly that they looked into the matter or considered if other members of Congress broke any Senate or House rules, regardless of whether outside laws were broken. Among the many concerns, the secrecy of the process provides no assurance to the American people that members take these scandals seriously.
Although Congress recently passed strong new rules to limit undue access by powerful interests, the federal ethics enforcement process is flawed in many ways. The House and Senate ethics oversight committees are comprised of colleagues who know and work with one another and who rely on one another’s support for legislation or campaign contributions, creating both the appearance and practice of a conflict of interest. Committee members have no guaranteed terms and can and have been removed as recently as 2006 for taking actions in the course of their work of which their colleagues disapprove. Complaints in the House can only be filed by other colleagues, limiting the ability of outside and more impartial observers to make their concerns heard.
While not every state has experienced the level of corruption uncovered in Congress last year, state legislatures face similar challenges. How should legislative ethics rules be enforced? How can lawmakers identify and hold accountable colleagues who cross the line and reassure skeptical voters that they are honest brokers of public policy and taxpayer money?
We decided to examine if state governments have had any success in creating an important layer of independence between the investigators and those being investigated—the state legislators. We found that the states are far ahead of Congress in understanding the inherent conflict of interest of colleagues overseeing colleagues. In fact, as of January 2007, at least 23 states had established independent commissions, boards or offices to oversee enforcement of ethics rules for their state legislators.
State commissions vary in how they were created, who participates and how they operate, but those that are independent from the legislature have, for the most part, several features in common:
- The commissions include outside panelists who oversee a professional director and a staff of impartial investigators;
- The commissions have clear and mandatory conflict of interest guidelines limiting service to those who are not covered by the rules or closely involved in partisan activities;
- Commissioners serve set terms and cannot be removed for any reason other than cause (i.e. neglect of duty, gross misconduct or other specified actions);
- The commissions have the power to receive complaints from the general public; and
- The commissions may launch investigations without legislative or outside approval and recommend orenforce sanctions against those who have violated the rules.
Some independent commissions also enjoy guaranteed funding outside of legislative appropriations and offer better disclosure of ethics complaints. In a few cases, to protect against partisan abuses, commissions will not release publicly or act on any complaint filed within 60 days of an election.
We can divide the states with independent ethics commissions or offices into roughly three categories. All of these states have taken steps to remove the inherent conflicts of interest when colleagues investigate colleagues. States in Categories 1 and 2 meet all of the independence criteria listed above including outside oversight, meaningful conflict of interest rules, protection against arbitrary removal of commissioners, an open complaint process, full investigative authority and full disclosure of complaints filed and actions taken. They are strong commissions with model design features that provide for significant independence. States in Category 1, however, also include features that provide additional checks on the system. The commissions in Category 3 states include most of the design elements necessary for independence from the legislature, but they fall short in one or more of the areas. For example, most of these commissions only disclose ethics complaints if the commission finds a violation.
The states not listed either allow legislators to sit on their ethics commissions or do not have commissions that oversee ethics rules for state legislators. Other states have ethics commissions that only oversee compliance with campaign finance and lobby disclosure laws but not ethics rules or enjoy jurisdiction only over state executive branch officials, the judiciary or other non-legislative elected or appointed officials and their staff.
Congress is almost alone in choosing to selfpolice. If members are serious about honest and open government, they should follow the lead of almost half of the states and establish an independent ethics enforcement commission.