Logan Dancey, Wesleyan University
(THE CONVERSATION) — Members of Congress can have their reputations damaged when caught up in a scandal, as media coverage surrounding George Santos for apparently lying about his resume and possibly violating campaign finance laws demonstrates.
Scandals can end congressional careers. So lawmakers may want to reduce scrutiny of their behavior. And yet members of Congress have at times voted to make themselves subject to even more scrutiny.
In 2008, a majority of U.S. House members voted to create the Office of Congressional Ethics, whose mission is to “review allegations of misconduct against Members, Officers and staff of the House.”
The office has reviewed and referred a variety of cases to the House for further consideration, including allegations of misuse of campaign funds, financial conflicts of interest and use of congressional staff for personal errands.
House leaders select the eight members of the office’s board. The board includes retired lawmakers but no current members of the House. This differs from the House Ethics Committee, which is made up of a bipartisan group of current members. As a result, the Office of Congressional Ethics has more independence from the House and has faced criticism from the lawmakers it is charged with investigating.
At the start of the current Congress, the new Republican majority reimposed term limits on the board. That meant several veteran Democratic members of the board would have to be replaced. The new House rules Republicans adopted also created a short window for the office to hire staff.
Both changes, critics warned, could reduce the office’s effectiveness. Democrats moved quickly to name new board members, and watchdog groups now appear less concerned about the fate of the office in this Congress.
Yet the most recent proposed changes to the office follow years of efforts by lawmakers to rein in the ethics watchdog they created. Members have long been skeptical of the office, and it remains vulnerable to attempts to limits its power.
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Scandals to reform
The House established the Office of Congressional Ethics following a series of high-profile scandals. A new Democratic majority took over the House in 2007 with promises to “drain the swamp” in Washington, and the ethics office’s creation was part of that effort.
This follows a historical pattern of Congress and state legislatures responding to scandals with reform.
The office’s role is to investigate ethics complaints it receives, including from members of the public. It does not have the power to enforce ethics rules or sanction members. Its role is to conduct investigations and then refer cases to the House Ethics Committee for further investigation when warranted.
The House Ethics Committee and House membership more broadly then decide what punishment, if any, members face for ethics rules violations. The chamber can go so far as to expel members, although it rarely does.
Lawmakers accused of misconduct typically have more to fear from the legal system or voters than from their House colleagues. When a member engages in illegal behavior, such as taking bribes, it can result in a criminal conviction. Allegations of misconduct also tend to reduce members’ support in future elections. The office’s investigation could therefore hurt members’ reelection chances, even if they do not face official congressional sanctions.
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Risks to reelection
Despite the fact that representatives themselves voted to create the office, it has come under criticism from members since its inception. Many lawmakers were skeptical of giving the power to investigate ethics violations to an outside body that might judge lawmakers’ behavior by a different set of criteria than members themselves.
House members’ concerns reflect their self-interest: Although the office lacks the power to sanction members, its existence still poses a risk for lawmakers. Information about the office’s referrals to the House Ethics Committee eventually becomes public. Ethics watchdogs say that before the office’s creation the internal House Ethics Committee’s process of investigating ethics violations was too secretive.
Advertising alleged misconduct by members can threaten reelection prospects for those implicated, as research shows that scandals increase the chances that a member loses the next election or retires.
In the years immediately following the creation of the ethics office, political scientist Scott Basinger found that the number of congressional scandals increased by 60%. This does not necessarily reflect an increase in potential ethics violations but could instead be the result of an increase in scrutiny and publicity.
Although the number of investigations into member misbehavior increased following the creation of the office, Basinger found no increase in the number of members sanctioned by the House for ethics violations. This finding seems to affirm members’ concerns. The office may view certain member activities, such as privately funded travel or fundraising events, with more suspicion than members themselves.
As a result, the office may be more likely than the Ethics Committee to suggest a member behaved improperly, raising the possibility of negative press or criticism.
Members’ skepticism of the ethics office turned into efforts to reduce its power, including proposals to limit the public availability of its reports and cut its funding.
Perhaps the greatest threat to the office came in 2017. A new Republican majority proposed changes that would reshape the office and reduce its independence by giving the House Ethics Committee greater oversight of its actions.
After criticism from Democrats, the public and even President-elect Trump, congressional Republicans ultimately left the office intact.
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Risk to opposing ethics office
Despite member skepticism, the ethics office has endured for a few reasons.
Party leaders backed it. Then-Speaker of the House Nancy Pelosi was a major proponent of the office and played an active role in persuading Democrats to support it in 2008.
Although Republican leaders did not support the office originally, they have, until now, resisted making changes to it, including during the 2017 effort to rein in the ethics office. As managers of the party’s broader reputation, party leaders are likely to be particularly sensitive to the reputational damage that may result from a party’s being perceived as lax on ethics.
The office has also survived because members are reluctant to publicly vote against it, since weakening ethics oversight is not likely to be popular with constituents. A 2011 vote to reduce its funding failed 102-302.
The more serious threats to the office have come at the start of new Congresses when the House sets its rules. The office currently exists as part of the House rules; it was not created by law. The House adopts new rules at the start of each Congress, which requires the office to be renewed every two years.
When the House votes on its rules at the start of a Congress, any changes to the office would be part of a larger rules package. That potentially gives members cover. They could vote for the rules package while saying they opposed specific provisions, such as the change to the ethics office.
Good government groups like Common Cause are pushing for Congress to make the office permanent by codifying it into law. Although Congress could always repeal the law, it would mean the office is not up for renewal at the start of every Congress. It could also prove more difficult for lawmakers to change the office without a direct vote on the matter.
Proponents of making the office more permanent face an uphill battle: Lawmakers already wary of the ethics office would need to vote to weaken their ability to rein it in.
What seems more likely is that the office will continue to face an uncertain future where lawmakers weigh their desire to limit its powers against fear of a public backlash if they choose to do so.
