Honest Enforcement: What Congress Can Learn From Independent State Ethics Commissions
2/6/2007
Executive Summary
Some
argue that last year’s scandals, which lead 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 or enforce 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 no 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.
Category 1
Connecticut
Kentucky
Category 2
Alabama
Arkansas
Florida
Kansas
Missouri
Montana
Oklahoma
Oregon
Rhode Island
West Virginia
Category 3
California
Louisiana
Maine
Massachusetts
Minnesota
Nebraska
Nevada
North Carolina
Pennsylvania
Tennessee
Wisconsin
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.
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