Congressional ethics and constituent advocacy in an age of mistrust.

• Author: Levin, Ronald M.

Table of Contents

1. Congressional Advocacy and Legislative

   Ethics Theory 6

   1. Legislators as Advocates 8

   2. The Ethics Enforcement Background 11 II. Constituent Service 15

   1. Description of the Process 16

   2. Positive Appraisals of Constituent Service 19

   3. Criticisms 21

      1. Casework as Reelection Stratagem: The

         Question of Motives 21

      2. Casework as an Unhealthy Political Influence 24

      3. Casework as a Flawed Grievance System 27

   4. Interim Conclusions 31 III. Improper Contacts and Undue Influence 34

   1. Ethics Enforcement Cases 35

   2. Judicial Case Law 38

      1. Formal Proceedings 39

      2. Informal Proceedings 43

      Michigan Law Review [Vol. 95:1

   3. Reform Proposals and New Approaches 48

      1. Formal Agency Proceedings and Other

         Sensitive Cases 48

      2. Indiscriminate Advocacy 52

      3. Threats of Reprisal on Unrelated Matters 54

      4. Threats in General 57

      5. The Outer Limits of "Undue Influence"

         Regulation 59

      6. Public Disclosure Options 62 IV. Favoritism and Money Influence in

         Constituent Service 67

   1. Background 67

   2. The Keating Case 68

   3. Rule XLIII 70

   4. Tightening the Rules: Some Normative Premises 73

      1. The Impulse Toward Stricter Regulation 73

      2. Cautionary Factors: Lessons from the

         Corruption Case Law 75

      3. The Campaign Finance Reform Connection 80

   5. Reform Proposals and New Approaches 84

      1. Simultaneity of Campaign Contributions and

         Intervention 85

      2. Intervention on Behalf of Contributors 92

      3. Office Practices 95

      4. The Appearance of Impropriety 97 Conclusion 108 Appendix 109

         Like lawyer-bashing, Congress-bashing seems never to go out of style. As every newspaper reader knows, and as public opinion surveys confirm,(1) the public's regard for die legislative branch has been discouragingly low for years. One of the incidents that has done most to fuel this mood is the Keating Five affair.(2) The Senate Ethics Committee's decision in the Keating case, which has been called "the ultimate metaphor for political corruption,"(3) provides a fitting prologue for this article's theme: the ethical dimensions of intervention by members of Congress into administrative agency proceedings.

         Charles H. Keating, Jr., was the controlling figure in Lincoln Savings and Loan, a California thrift institution that was under investigation by officials of the Federal Home Loan Bank Board in the mid-1980s.(4) He successfully prevailed on five senators - Alan Cranston, Dennis DeConcini, John Glenn, John McCain, and Donald Riegle - to press Bank Board officials to take his concerns more seriously, or at least to expedite their handling of the Lincoln case. The pressure reached its climax at two meetings held in April 1987 between the five senators and Bank Board officials, including the Board chairman, Edwin Gray. When regulators disclosed that Lincoln would be the subject of a criminal investigation, most of the senators curtailed their involvement in the matter.

         What made the case sensational was that Keating had raised around $1.5 million for the senators' campaigns and political causes. Senator Cranston and his affiliated groups had received most of this money, but all of the other senators, or organizations associated with them, had received $70,000 or more. The country's growing awareness of the costs of bailing out failed savings and loan associations made the events seem all the more scandalous.(5)

         In the fall of 1989, after the press had reported many of the facts about the five senators' interventions, the Ohio Republican Party, Common Cause, and others filed complaints against the senators with the Senate Ethics Committee. That committee launched preliminary inquiries against the five senators. In February 1991 the Committee announced that it would take no further formal action against DeConcini, Glenn, Riegle, and McCain, although it criticized them for poor judgment and, in Riegle's and DeConcini's cases, unseemly appearances.(6) At the same time the Committee concluded that it had enough evidence of impropriety by Senator Cranston to warrant further proceedings. When the Committee finally rendered its decision on Cranston in November of 1991, it stopped short of recommending censure. It devised an unprecedented intermediate sanction: a "reprimand" issued on the Committee's authority but delivered in the presence of the full Senate.(7) The Committee explained that Cranston had "engaged in an impermissible pattern of conduct in which fund raising and official activities were substantially linked."(8) The Committee based its decision on no specific acts of misconduct, but rather on "the totality of the circumstances."(9)

         Editorial reactions to the Committee's decisions in the Keating case were caustic. The dominant view was that the Committee had been far too lenient.(10) Commentators also were troubled by the vagueness of the Committee's explanation." The Committee seemed far more ready to acknowledge that congressional intervention in agency proceedings has ethical limits than to specify what they are. Each of the five senators had depicted his conduct as fundamentally similar to the "constituent service" that all senators and representatives provide to individuals who have disputes with federal agencies. The Committee's failure to set forth a clear explanation for its actions suggested that it did not know quite how to respond to that claim.

         The Committee's decision in 1995 to recommend expulsion in the case of Senator Robert Packwood suggests that a pattern of leniency in congressional ethics adjudication may now be nearing an end. If so, however, the lack of clarity as to the substance of congressional ethics rules can only become more troublesome. Nevertheless, post-Keating proceedings in Congress have made little further progress in defining the legitimate limits of constituent service. Meanwhile, new, if less dramatic, controversies continue to arise.(12)

         Given the manifest lack of a consensus on the issue, now seems an auspicious time for an inquiry into the proper limits of intervention by members of Congress into administrative proceedings. To that end, this article offers a survey and critique of Congress's past and possible future responses to ethics issues in constituent service.(13) One of the principal conclusions of die article is that those issues are much closer - and less amenable to easy answers - than most editorial writers seem to have assumed.

         Part I offers a theoretical framework, revolving around the conflicting responsibilities inherent in the legislator's role: members of Congress are supposed to pursue the public interest, but they also are supposed to act as advocates for individuals. This conflict helps to account for the difficulty of the ethics issues in the constituent service realm. Part II offers a more empirical perspective on the realities of congressional advocacy of constituents' interests before administrative agencies. It delves into the political science literature in order to provide a factual description of the casework system. This Part also reviews the debate in the literature over the intrinsic value of that system, noting the views of defenders as well as detractors.

         With that conceptual and empirical groundwork laid, Part III addresses the ethics questions that arise out of claims that an individual legislator's advocacy of constituent interests in an administrative forum embodies an element of "pressure" or "undue influence." The Keating case did not turn directly on this issue, but in other recent ethics cases the theme has played a quite prominent role, most notably in the proceedings brought against Speaker Jim Wright in the House of Representatives a few years earlier. A considerable body of administrative law bears indirectly on this issue, and a major objective of this Part is to treat judicial doctrine on undue influence as a basis for principles that the congressional ethics committees could employ for guidance and enforcement purposes.

         Finally, Part IV turns to the narrower but more visible issue of money influence on congressional constituent service. The discussion analyzes the Keating case and its aftermath in Congress, as well as the criminal law's role in reconciling the need to permit legitimate campaign finance with the need to curtail corruption of legislators. Against that background, this Part evaluates some of the most visible proposals for reducing the risks of congressional favoritism toward campaign contributors. Part IV also critiques the beguiling but troublesome notion of regulation based on an "appearance of impropriety."

         This article concentrates on the substantive rules of congressional conduct and does not inquire into the related question of how, if at all, the House and Senate should reform the procedural machinery by which they administer these rules.(14) The latter theme is a highly topical matter, having been the subject of a task force appointed by the House and Senate leadership during the last Congress.(15) One commonly discussed proposal, for example, is to entrust major portions of the enforcement process to former members of Congress or other individuals who are not currently serving in the legislature.(16) Any procedural reforms, however, should complement, not displace, continued attention to fundamental substantive questions. It is too easy to argue that the problems of the Keating scandal would take care of themselves if only the cases were placed in the hands of adjudicators with sufficient fortitude. Philosophical questions about the proper roles of members of Congress as constituent advocates remain deeply controversial today, and only if Congress and the country can reach something approaching a consensus on those questions will the ethics committees be able to discharge their responsibilities in this area in a coherent and credible fashion.

1. Congressional Advocacy and Legislative Ethics

   Theory

   On first inspection, the vagueness, defensiveness, and caution marking the Senate's response to the Keating problem do not seem surprising. One might...