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The Constitutionality and Structure
of an Independent Congressional Ethics Agency

The oversight responsibilities of the Senate and House ethics committees, and the lobbying disclosure responsibilities of the Clerk of the House and the Secretary of the Senate, should be consolidated into an independent agency capable of fulfilling a watchdog mission.

Opponents of reform have argued that the constitution institutionalizes the current system of internal ethics oversight. This assumption is based on two passages. According to Article 1 Section 5 Clause 2 of the US Constitution,

“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.”

In addition, the Speech or Debate Clause of the Constitution (Article 1 Section 6 Clause 1) states that the Senators and Representatives

“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; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

The two provisions are often used as a justification for exclusion of non-members of Congress from oversight of the congressional ethics process. But the language of the Constitution states only that both Houses may have an exclusive right to punish its members for “disorderly behavior” or to expel its members by a two-thirds vote.

Harvard University law professor Dennis Thompson explains:

“The clause in question does not literally prohibit the delegation of this authority. The clause says that Congress ‘may’ determine rules and punish its members, not ‘shall’ as in some other clauses. In addition, there is no authoritative court decision interpreting the clause in a way that would prevent Congress from establishing an outside agency for ethics enforcement.”[1]

Punishment for violations of law—such as violating federal campaign    finance laws or lobbying disclosure laws—are already often meted by non-congressional agencies (such as the FEC or the Department of Justice), when necessary. With an independent ethics agency, expulsion from Congress would still require specific congressional action.

    All other activities pertinent to laws involving revolving doors and conflicts of interest, regulations and enforcement, including investigations of ethics violations and other ethics proceedings, may be determined by the rules of each House and vested with an independent authority upon an Act of Congress. Therefore, even with an independent ethics agency it stands that both the House and the Senate are free to adopt any legislation or rules on ethics proceedings that they consider necessary.

In addition to preserving the integrity of decision-making in Congress, an independent ethics agency embraces the spirit of the Constitution. The idea of creating an independent agency, staffed by professional career government employees rather than members of Congress, is consistent with the constitutional principle that seeks to separate interested parties from those judging a case.

What Should It Look Like

An effective ethics agency should be:

• staffed by career professionals rather than by those whom they regulate;

• vested with the authority to promulgate implementing rules and regulations, conduct investigations, subpoena witnesses, and issue civil penalties for violations;

• provided reasonable independence from the immediate control of those whom they regulate; and

• empowered as the central agency for implementation, monitoring, enforcement and public disclosure of its charges.

    Members of a new congressional ethics agency should be full-time positions, staffed and directed by career officers who are not members of Congress. It should assume all the responsibilities of ethics enforcement and lobbying disclosure for both houses of Congress. The agency should also be afforded a budget that is approved once every two sessions of Congress in order to better insulate the agency from congressional retaliation.

[1]   U.S. House of Representatives, Final Report of the Joint Committee on the Organization of Congress (Dec. 1993), available at: http://www.house.gov/rules/jcoc2.htm

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