Cleaning house: congressional commissioners for standards.

• Author: Chafetz, Josh

The past two years have seen a profusion of congressional scandals of all sorts, from official corruption (William Jefferson and Duke Cunningham, among others) to personal misconduct (Mark Foley comes to mind). Exit poll data suggest that these scandals played a significant role in the Democrats' victory in the 2006 midterm elections. (1) Unsurprisingly, the new Democratic majority has made ethics reform a priority. (2) Most significantly, both the House and the Senate have amended their rules to forbid the acceptance of gifts from lobbyists or firms that employ lobbyists. (3) However, these stricter substantive rules will be largely meaningless without a stronger enforcement mechanism.

Who should be tasked with this enforcement role? For several reasons, the legislative branch itself is best suited for this responsibility. First, investigations of members by the Department of Justice and punishment of them in the courts raise serious questions under the Constitution's Speech or Debate Clause. (4) The best reading of this Clause would protect meetings between members and their constituents, as such meetings are a vital component of the congressional function. (5) Much alleged congressional wrongdoing, however, involves such interactions between members and their constituents (or other interested citizens). If the speech or debate privilege indeed extends to constituent communications, then it is not for another branch of government to distinguish "good" constituent communications ("You should vote for this bill because it's good policy, Senator.") from "bad" ones ("You should vote for this bill because there's something in it for you, Senator."). To allow the executive and judiciary to probe such distinctions would be to undercut the very point of this broad congressional privilege. (6)

But even if the courts reject Speech or Debate Clause challenges, (7) it is less than ideal to leave the executive and judicial branches with the responsibility for policing the legislature. Doing so raises a more general separation-of-powers concern: respect for a coequal branch of government should, at the very least, caution the executive and the judiciary to tread lightly when probing into the affairs of the legislature. In this vein, consider the thorny issues raised by the search of Representative William Jefferson's congressional office. (8)

Finally, public disgust with congressional corruption extends well beyond those comparatively few districts represented by corrupt members, (9) which suggests that many voters consider Congress as an institution to be corrupt. A Congress that cleaned its own house(s), rather than relying on the other branches to police it, would go a long way toward repairing its reputation--after all, self-restraint is generally taken as a sign of responsibility and trustworthiness. (10) Surely, there is public benefit in restoring confidence in our democratic institutions.

Of course, for congressional self-regulation to be any improvement, it must be effective. Unfortunately, the congressional ethics committees have been part of the problem more often than they have been part of the solution. (11) Outsiders are not allowed to bring complaints before the committees, and members are often unwilling to file complaints against their colleagues. (12) Even normal political checks have broken down when it comes to the ethics committees--like efficient duopolists, the two parties have simply colluded to avoid investigations. (13) When committee members have violated this agreement, party leaders have punished them. (14)

But the failure of these committees should not lead us to give up on the concept of congressional self-regulation. Instead, this Comment proposes a new congressional oversight body, modeled on the British Parliamentary Commissioner for Standards.

1. THE PARLIAMENTARY COMMISSIONER FOR STANDARDS

   In 1995, a committee, chaired by Lord Nolan and charged with recommending changes in the law aimed at restoring confidence in public officials, proposed creating a Parliamentary Commissioner for Standards. (15) The House of Commons created the office that same year. (16) The office has five key features. First, the Commissioner is not a member of the House of Commons, but she is an official of the House. Her position was created by a single-house resolution, not by statute, and she does not hold her office by virtue of a letter patent from the Crown. (17) The British have long treated executive and judicial inquiry into alleged impropriety by members as a breach of parliamentary privilege, (18) and, to this day, no member of Parliament has ever been convicted in the courts for bribery. (19) Thus, any officer overseeing parliamentary ethics had to be an officer of the House.

   Second, the Commissioner's office is structured to give her a good deal of independence and job security. Her term lasts for five years and is nonrenewable. She may be dismissed by resolution of the House only after the Committee on Standards and Privileges issues a report recommending her dismissal. (20)

   Third, there is a regularized mechanism by which ethics complaints against members can be brought to the Commissioner's attention. (21) Importantly, members of the...