“Independent” Legislative Commission or Office for Ethics and/or Lobbying

Order Code RL33790 “Independent” Legislative Commission or Office for Ethics and/or Lobbying Updated April 14, 2008 Jack Maskell Legislative Attorney American Law Division R. Eric Petersen Analyst in American National Government Government and Finance Division “Independent” Legislative Commission or Office for Ethics and/or Lobbying Summary There have been numerous recent proposals and discussions of constituting, by legislation or congressional rule, an “independent” body or “commission” in the legislative branch of the federal government. These types of commissions would be, for the most part, made up of persons who are not currently Members of either House of Congress, and could be tasked with overseeing, and perhaps “enforcing,” either lobbying regulations, disclosures, and reporting by outside, private individuals and groups (required under federal law by the Lobbying Disclosure Act of 1995, as amended), or alternatively, or in addition, assigned to oversee or enforce in some manner congressional “ethics” rules, that is, reviewing the propriety of conduct of Members of Congress and congressional employees under current House and/or Senate Rules (as well as applicable federal law). The latter duty would necessarily involve receiving and investigating complaints or allegations of misconduct by Members and employees of the House or Senate, and recommending actions or referring for action apparent violations of law or Rule. Several policy issues are raised concerning the efficacy and desirability of the establishment and functioning of such a commission, as well as certain threshold constitutional questions. On January 31, 2007, Speaker of the House Pelosi appointed a Special Task Force on Ethics Enforcement to review the issues and to make a recommendation to the House concerning an independent ethics commission or office for ethics enforcement in the House of Representatives. On December 19, 2007, after hearings, meetings, and conferences with both internal and outside ethics and congressional experts, and other interested parties, a House Resolution, H.Res. 895, 110th Congress, was introduced by the Chairman of the Task Force, Representative Capuano, proposing the establishment of an independent Office of Congressional Ethics within the House of Representatives, to be made up of non-Members, which would screen allegations and could initiate on its own initial reviews of allegations and complaints of misconduct and ethical improprieties by Members and staff of the House. Once preliminary and “second-phase” reviews of complaints or allegations are conducted by the Office, a referral may be made by the Office to the House Committee on Standards of Official Conduct, the standing “ethics” committee in the House, to conduct a formal investigation of the matter under existing procedural Rules and, if the Committee finds such matter warrants, the Committee may make a recommendation to the full House for disciplinary action. After several amendments were made to H.Res. 895 by the Chairman of the Task Force, the House, with the passage of H.Res. 1031, 110th Congress, adopted the amended Task Force proposal on March 11, 2008. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Pro-Con Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Constitutional Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Authority To Discipline Members — Delegation . . . . . . . . . . . . . . . . . . . . . 5 Speech or Debate Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Office of Congressional Ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Independence and Make-Up of Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Functions and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Outside Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Subpoena Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 “Independent” Legislative Commission or Office for Ethics and/or Lobbying Introduction The issue of creating an “independent” entity to oversee, enforce, or provide guidance on legislative branch ethics issues has been one for which numerous options have been considered, proposed, and discussed in the 110th Congress.1 Detailed changes were made in the 110th Congress to the internal House and Senate Rules concerning the substantive rules on gifts, privately funded travel, relationships with lobbyists, post-employment conflicts of interest, as well as in-house ethics training,2 but those particular changes did not include creating any independent enforcement commissions, offices, or task forces for congressional ethics. On December 19, 2007, a House Resolution, H.Res. 895, 110th Congress, was introduced by the Chairman of the Special Task Force on Ethics Enforcement, which had been appointed by the Speaker earlier in the year, proposing the establishment of an independent “Office of Congressional Ethics” within the House of Representatives, to be made up of non-Members, which would screen allegations and could initiate on its own initial reviews of allegations or complaints of misconduct and ethical improprieties by Members and staff of the House. The House of Representatives, on March 11, 2008, adopted an amended H.Res. 895, with the passage of H.Res. 1031, 110th Congress, from the Committee on Rules.3 The 1 Representative Nancy Pelosi, “Pelosi Announces Opening Session of 110th Congress,” Nov 21, 2006; “Pelosi: Democrats’ First Order of Business in the New Congress Will Be Ethics Reform,” press release, Nov. 27, 2006; Representatives Nancy Pelosi, Steny Hoyer, James Clyburn, Rahm Emanuel, John Larson, Rosa DeLauro, and George Miller, “Materials for Today’s Members’ Conference Call on Democratic Rules Package,” Dear Colleague letter to Democratic Caucus, Dec. 14, 2006; Senators John McCain, Susan Collins, Russell Feingold, and Joseph Lieberman, and Representatives Christopher Shays and Martin Meehan, “Sens. McCain, Feingold, Collins, Lieberman, Reps. Shays and Meehan Hold News Conference on Lobbying Reform,” transcript, Dec. 5, 2006; David Nather, “Democrats’ First 100 Hours: New Rules Will Test Promise to Run ‘Most Ethical Congress in History,’” CQ Weekly, Nov. 20, 2006; Senator Harry Reid, “Senate Minority Leader Reid Delivers Democratic Response to President Bush’s Weekly Radio Address,” transcript, Nov. 18, 2006, article and transcripts retrieved from [cq.com]. 2 H.Res. 6, 110th Cong. (Jan. 4, 2007); H.Res. 363, 110th Cong. (May 2, 2007); H.Res. 437, Section 4, (May 24, 2007); and the “Honest Leadership and Open Government Act of 2007,” P.L. 110-81, September 14, 2007 (S. 1, 110th Congress). 3 154 Congressional Record H 1515 - H 1536 (daily ed., March 11, 2008); see H.Rept. 110547, 110th Cong., 2d Sess. (2008). CRS-2 structure, function and duties of the new Office of Congressional Ethics is discussed in the last section of this report. Prior to the adoption of H.Res. 895, and the creation of the Office of Congressional Ethics, several options and issues were considered including the creation of an independent ethics commission within the legislative branch with authority to receive disclosure reports (including congressional gifts, lobbying disclosure, and Member financial statements) required under law and congressional rule, or the creation of an independent office of public integrity. Proposals of this nature would have included either an entity to serve the entire Congress, or within each chamber, and could have been tasked with receiving financial disclosure and other reports filed by Members, congressional officers, and their staff under the Ethics in Government Act of 1978,4 as well as reports filed by registered lobbyists under the Lobbying Disclosure Act (LDA).5 Various proposals would have created such an office to be authorized to audit registration and disclosure forms, investigate any alleged violation of any rule or other standard of conduct, and present a case of probable violations to the Committee on Standards of Official Conduct of the House of Representatives, the Senate Select Committee on Ethics, or the Department of Justice, as appropriate. Other proposals would have such offices substantially supplant current standing ethics committees in the House and Senate by authorizing such outside entities to provide information and guidance to Members, congressional officers, and their staff regarding any rules and other standards of conduct applicable in their official capacities, or to substitute for the current offices of the Clerk of the House and Secretary of the Senate by providing guidance to lobbying registrants of their responsibilities under LDA.6 Pro-Con Discussion The potential consequences of reorganizing investigation and enforcement of ethics-related activities are unclear. For example, in regard to enhanced oversight of the interactions between lobbyists and Members of Congress and their staff, it is arguable that vesting administrative oversight in the chamber ethics committees 4 Ethics in Government Act of 1978, 5 U.S.C. App. Sec. 401. 5 Lobbying Disclosure Act of 1995, as amended, 2 U.S.C. 1601. 6 In the 109th Congress (2005-2006), several measures were introduced that would have created an office of public integrity or similar entity vested with some or all of these responsibilities. These measures include H.R. 4682, the Honest Leadership and Open Government Act of 2006, introduced by Representative Nancy Pelosi; H.R. 4799, to establish a legislative branch office of public integrity, introduced by Representative Christopher Shays; H.R. 4696, the Restoring Trust in Government Act, introduced by Representative Mike Rogers of Michigan; S. 2180, the Honest Leadership and Open Government Act of 2006, introduced by Senator Harry Reid; and S. 2259, the Congressional Ethics Enforcement Commission Act of 2006, introduced by Senator Barack Obama. For analysis of these proposals, see CRS Report RL33065, Lobbying Reform: Background and Legislative Proposals, 109th Congress, by R. Eric Petersen, and CRS Report RL33234, Lobbying Disclosure and Ethics Proposals Related to Lobbying Introduced in the 109th Congress: A Comparative Analysis, by R. Eric Petersen. CRS-3 might provide more opportunity to monitor those interactions, because those panels already have jurisdiction over congressional ethics rules governing Members’ interactions with lobbyists. On the other hand, it is not clear how those panels might oversee the disclosure of lobbying interactions with executive branch officials, or enforce laws governing the behavior of lobbyists. Similar concerns might affect ethics commissions or public integrity offices based in the legislative branch. Regarding matters related to the enforcement of congressional ethics requirements, critics of current congressional disciplinary proceedings have argued that the inherent and structural “conflicts” in congressional self-discipline are the causes of what is seen by some to be an apparent reticence of Congress to enforce ethical standards against its own Members. Members often seek to cooperate to a large extent with one another in the legislative process, and there may be a natural reticence for Members to do something detrimental to one another. Many Members are now reluctant to serve on an ethics committee, where the proceedings may take a great amount of time, and where the Member may be subject to criticisms from the public if perceived as being too lenient, or from congressional colleagues if perceived as being too harsh. Actual disciplinary actions by the full Senate or House have, in fact, been relatively rare. The Senate has “censured” eight Senators in its history, and has not expelled a Member of the Senate since the Civil War.7 The House has censured 22 Members,8 and “reprimanded” eight others, while expelling five of its Members in its history, three during the Civil War for disloyalty to the Union, and the most recent expulsion in 2002 after conviction of conspiracy to commit bribery, receipt of illegal gratuities, obstruction of justice, and other charges in connection with receipt of favors and money in return for official acts.9 The relatively low number of actual disciplinary actions may be attributable to some degree to the fact that many Members, facing such disciplinary action, prefer to resign from Congress rather than to pursue the matter. In other instances, the voters have effectively resolved the matter by either not re-nominating the Member in a primary, or voting the individual out of office in the general election before disciplinary action is completed. Many commentators feel that for conduct which does not affect the proceedings of the institution itself, the voters, by way of the ballot box, are the proper judges of the conduct and fitness of the Member, and Congress should not interfere with that judgment. There has been some concern expressed about providing for an independent office of public integrity, possibly composed in part of non-Members, in that Congress might be abdicating a constitutional and institutional responsibility for self-protection. Although a potentially difficult task, it is one expressly assigned each 7 Fourteen Senators were expelled during the Civil War for disloyalty to the Union, and one other Senator was expelled in 1797, also for disloyal conduct 8 9 Actually, 21 Members and one Delegate. See CRS Report RL31382, Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives, by Jack Maskell. CRS-4 House of Congress by the Constitution. There is also a fear that if non-Members more frequently recommend censures and/or reprimands, such actions may lose their importance and potency as a statement of strong congressional disapproval and “punishment.” There is an additional practical problem of having an entity or organization involved in the “enforcement” and oversight of congressional ethics rules, such as one or more of the commissions proposed, which does not, and is not the same entity, that interprets and provides opinions based on those same ethics rules, a function which is, and has traditionally been, within the jurisdiction of the socalled “ethics” committees in the House and Senate (the House Committee on Standards of Official Conduct, and the Senate Select Committee on Ethics). In addition to those concerns, some of the potential issues raised by current practices in congressional self-discipline, and reasons for a more “independent” office of public integrity that could arise, have been suggested to include: ! perceptions by the public that internal self-discipline presents inherent “conflicts” for Members who have difficulty judging their peers, ! perceptions that a collegial atmosphere pervades in the House and Senate to protect a Member from strong disciplinary recommendations; ! reluctance on the part of Members to serve on the ethics committees since, regardless of what ethics recommendation might be made, the public may perceive anything short of expulsion as only a minor penalty for a Member, while any action taken against another Member could have long term institutional consequences for collegiality, comity and the deliberative capacity of Congress; ! perceptions that an independent office might reduce or eliminate the challenges of implementing current ethics enforcement regimes, which have at times been used as a tool of partisan conflict; and ! perception that independent examination of the evidence and the making of disciplinary recommendations may be more impartial in judging a Member’s conduct. On the other hand, some of the factors which may argue against having chamber-based or legislative branch commissions involved in the congressional disciplinary process might include: ! perception that by delegating some portion of the process for addressing alleged violations of chamber ethics rules, Members of Congress may be seen as shirking their constitutional duty and their institutional responsibility to investigate or punish their own Members; ! concern that disciplinary action may be left to those who do not have the working knowledge and appreciation of the factors and realities CRS-5 of congressional life, service as a Member of Congress, or the currently accepted norms of ethical behavior in Congress; ! increased application of sanctions, including more frequent censures or, in the House, censures or reprimands, which may dilute the impact of such actions taken by either chamber, and unnecessarily hamper certain conduct of chamber business; ! proceedings carried out by an independent commission may be more cumbersome, adding additional layers of procedure, that may be overly legalistic, technical, and costly to participants than more summary, collegial exercises of peer discipline; and ! enforcement of congressional ethics can not be entirely independent of either chamber, or else constitutional concerns related to “Speech or Debate clause” immunity issues may arise. Constitutional Issues Questions have been raised as to whether an “independent” commission or similar body in the legislative branch of Government which is concerned with congressional ethics enforcement would comport with the provisions of the U.S. Constitution. There are two initial, and interconnected constitutional questions concerning (1) the authority to discipline Members of each House of Congress, and (2) a Member of Congress’s privilege for “Speech or Debate.” Authority To Discipline Members — Delegation The U.S. Constitution expressly assigns the enforcement of internal ethics and disciplinary matters regarding their own Members to the Senate and to the House of Representatives, respectively, specifically authorizing and empowering each House of Congress to establish its own rules for proceedings and to punish its own Members for misconduct: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.10 One of the particular purposes of this express grant of rule-making and internal housekeeping authority to each House of Congress, as well as certain grants of particular privileges and immunities to the Members of Congress and the countervailing authority for self-discipline, was to ensure the independence of the 10 United States Constitution, Article I, Section 5, clause 2. CRS-6 legislature from executive and judicial influence, and to establish the Congress as an independent, co-equal branch of the federal government.11 The express constitutional language of Article I, Section 5, clause 2, and the principles behind this authority thus provide a significant indication that the final authority for internal congressional punishment of a Member must remain within the legislative body itself. That is, any “enforcement” of congressional ethics rules or federal law that involves a legislative “punishment” contemplated in and pursuant to Article I, Section 5, clause 2, such as, for example, a “censure,” an expulsion, or loss of seniority, should be carried out by the House or Senate itself concerning one of its own Members. However, even if the final authority to punish a Member by the legislature might not be delegated to non-Members, is there an impediment for each House of Congress to delegate the authority for fact-finding, information gathering and the making of preliminary recommendations within that process? The Constitution does not express the form, manner, or mechanism that internal ethics enforcement procedures, preliminary to a punishment of one of its own Members, must take in Congress.12 As noted by the Supreme Court: “As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require....”13 The same language that provides to each House of Congress the express grant of authority to make its own rules, and the associated authority to discipline and punish its own Members, would appear to give to each House of Congress broad discretion and authority, within this constitutional framework, to fashion and direct its own internal operations and functioning, as befits a legislative assembly which is an independent, co-equal branch of Government under our governmental system of separated powers.14 This broad authority in rule-making and discipline has been recognized in the considerable deference traditionally paid by the courts to the 11 United States v. Ballin, 144 U.S. 1, 5 (1892); see also discussion in United States v. Johnson, 383 U.S. 169 (1966); United States v. Brewster, 408 U.S. 501 (1972). 12 The only express constitutional requirement is for a two-thirds concurrence of the Members of the House or the Senate for an expulsion from that body. Article I, Section 5, clause 2. 13 Dillon v. Gloss, 256 U.S. 368, 376 (1921), cited in Nixon v. United States, 506 U.S. 224, 230 (1993). 14 Story, Commentaries on the Constitution, at Vol. II, § 835: “No person can doubt the propriety of the provision authorizing each house to determine the rules of its own proceedings. If the power did not exist, it would be utterly impractical to transact the business of the nation....” Note also Thomas Jefferson: “Each house of Congress possesses this natural right of governing itself....” The Papers of Thomas Jefferson, Julian P. Boyd, editor, Vol. 17, at 195-196, (1950), at Kurland and Lerner, The Founders’ Constitution, Vol. II, at 300 (1988). CRS-7 explication, application and definition of internal procedural matters in both Houses of Congress.15 That the Congress has a fairly wide range of discretion in establishing the particular procedures for fact finding, gathering evidence and information on matters which the Members themselves must finally judge, was clearly expressed by the Supreme Court in Nixon v. United States. In Nixon, the Supreme Court turned down a legal challenge to the internal procedures that the Senate had adopted for impeachment actions. The petitioner, an impeached federal judge, argued that the Senate may not delegate to a Committee the responsibility of holding an evidentiary hearing on an impeachment, and then merely receive a report for final action. Nixon argued that because the Constitution requires the “Senate” to “try” cases of impeachment, the actual hearing or adjudication on an impeachment in the Senate must be before the entire Senate. The Court, however, found that the Constitution did not seek to place such restrictions on the Senate’s procedures for fact finding and receiving evidence in impeachment cases. The word “try” in the Constitution did not impart a particular procedure for the entire Senate to follow in considering the matter. Similarly, the use of the term “Senate” in the Constitution did not imply that the entire Senate must be involved in all of those functions, and did not require that preliminary matters be barred from being delegated and findings simply reported to the full body. As noted by the Court: Petitioner’s interpretation would bring into judicial purview not merely the sort of claim by petitioner, but other similar claims based on the conclusion that the word “Senate” has imposed by implication limitations on procedures which the Senate might adopt.16 In Nixon, however, it should be noted the delegation of authority by the “Senate” was to one of its own, duly constituted committees, made up of Senators and staff employees answerable to Members of the Senate. The delegation was thus not to an outside, “independent” commission or body made up of non-Members of the institution, and thus while the precedent is certainly important, it may not answer definitively the question raised. Significantly, the Court in Nixon found that the claims of the petitioner were “nonjusticiable,” that is, they were not proper subjects for judicial review because under the political question doctrine and its separation of powers implications, the Court found “a textually demonstrable constitutional commitment of the issue to a coordinate political department.”17 Since these are matters specifically assigned in the Constitution to the Congress, Congress has broad discretion in establishing the 15 United States v. Ballin, 144 U.S. 1, 5 (1892); Nixon v. United States, 506 U.S. 224 (1993). With respect to the express authority of Congress also in Article I, Section 5, to judge the elections and returns of its own Members, the Supreme Court has similarly noted that these matters are not reviewable by a court. See Roudebush v. Hartke, 405 U.S. 15, 19 (1972), and Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613, 616 (1929). 16 17 Nixon v. United States, supra at 232. Nixon v. United States, supra at 229, 236-238, citing Baker v. Carr, 369 U.S. 186, 217 (1962). CRS-8 procedures that it uses, and the courts would not review such procedures absent a conflict with another specific section of the Constitution. Internal ethics matters and procedures regarding enforcement of standards of official conduct and decorum, are similarly matters that have been expressly assigned within the Constitution to each House of Congress. Absent violations of other express constitutional guarantees, these matters and the procedures established by each House with respect to them are within the discretion of each House, and it is possible that the federal courts would similarly find that they involve such matters for which “there is no established right of review” by the courts.18 The specific procedures adopted by either House in investigating and factfinding in disciplinary matters are, as noted above, undertaken as an exercise of the rule-making authority of each House. Under the rule-making authority, expressly committed to each House of Congress in the Constitution, the legislature has broad discretion for establishing for itself the particular procedures that it will use in its internal processes.19 The Supreme Court has explained: The Constitution empowers each house to determine the rules of its proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate or even more just.... It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.20 Within the constitutional framework of each House’s authority to punish its own Members and to make its own rules for its proceedings, it is not clear that either House of Congress, or both Houses, would be prohibited by the Constitution from assigning such tasks as initial investigations, fact finding, and the making of 18 United States v. Brewster, 408 U.S. 501, 519 (1972). The Supreme Court noted in dicta that judicial review of congressional discipline of its own Members would not likely be available: “The process of disciplining a Member of Congress ... is not surrounded with the panoply of protective shields that are present in a criminal case. An accused Member is judged by no specifically articulated standards, and is at the mercy of an almost unbridled discretion of the charging body ... from whose decisions there is no established right of review.” See also Powell v. McCormack, 395 U.S. 486 (1969), where the Court did examine House “exclusion” proceedings because the congressional action there, ruling on a Member’s extraneous “qualifications” for office, offended other express constitutional provisions establishing exclusive qualifications for congressional office. Justice Douglas, in his concurrence, expressly explained that if the matter before them had been a disciplinary matter, such as an expulsion, the case would be non-justiciable: “And if this were an expulsion case I would think that no justiciable controversy were presented....” 395 U.S. at 553. 19 20 United States v. Ballin, 144 U.S. 1 (1892). United States v. Ballin, supra at 5. (Emphasis added). Once rules are established, however, Congress is obligated not to ignore or violate them. Yellin v. United States, 374 U.S. 109 (1963); Gojack v. United States, 384 U.S. 702 (1966). CRS-9 preliminary recommendations on behalf of Congress to non-Members, temporary or permanent staff, or independent “fact finders.” That the exercise of investigatory functions for the Congress may be accomplished through legislative committees and staff properly delegated that authority has long been recognized.21 Congressionally appointed entities, properly constituted and delegated, may also conduct fact-finding and advisory functions in a similar manner as congressional committees.22 In Buckley v. Valeo, the Supreme Court explained that a congressionally-appointed commission may exercise “investigative and informative” duties “in the same category as those powers which Congress might delegate to one of its own committees....”23 A lower federal court had earlier explained: “It is well established that Congress has the power to secure needed information relative to legislative action through registration and answers to questionnaires [citations omitted], as well as through congressional committees [citations omitted], or through administrative bodies existing or to be created in the manner prescribed by Congress ... Sinclair v. United States, supra [279 U.S. 263 (1929)]; Townsend v. United States, 95 F.2d 352, certiorari denied 303 U.S. 664....”24 In sum, the various independent investigatory or oversight bodies under consideration apparently may not be empowered to “punish” or discipline a Member of Congress, but might be able to be the repository for information and filings by and concerning Members of Congress, as well as outside entities such as lobbyists and lobbying organizations; apparently could investigate allegations of misconduct or noncompliance with Rules or laws; and could report to the appropriate standing committees in the House and Senate statements or findings concerning alleged ethical violations. Making findings, recommendations, or referrals concerning a Member of Congress and ethical violations appears not to be a punishment or discipline in this process, but rather merely a fact-finding exercise in a preliminary stage, that is, for example, a finding that sufficient evidence exists that there is a probability (e.g., “probable cause”) that a particular Member has violated ethical standards. Any statement, findings, conclusions or referrals to the appropriate House or Senate Committee would then be adjudged by Members of Congress on the respective ethics Committee in the first instance, and then if any institutional discipline or punishment is to be given a Member of Congress, such action must be taken on the floor by the Members of the full House or Senate. Since the entire exercise of authority to actually “punish” Members for misconduct appears to be retained by each House of the Congress in this process, such a fact-finding and preliminary findings process employed would arguably entail a valid exercise of Congress’s rule-making authority to adopt the procedures Congress feels are appropriate to carry out its express constitutional authority to discipline its own Members. 21 Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975); McGrain v. Daugherty, 273 U.S. 135 (1927); Sinclair v. United States, 279 U.S. 263 (1929). 22 Buckley v. Valeo, 424 U.S. 1, 137 (1976); see also United States v. Rappeport, 36 F.Supp. 915, 917 (S.D.N.Y. 1941). 23 424 U.S. at 137. 24 United States v. Rappeport, supra 917. CRS-10 Speech or Debate Immunity An even thornier question concerning the delegation of authority to an “outside” or “independent” entity for ethics investigations and enforcement, however, may be the practical issue of the Speech or Debate immunity of Members of Congress. Under Article I, Section 6, cl. 1, of the U.S. Constitution, “Senators and Representatives ... for any Speech or Debate in either House, ... shall not be questioned in any other place.” Members of Congress may therefore not be questioned and made to answer in “any other place” for their official legislative activities which are covered by the Speech or Debate privilege, that is, generally, legislative conduct or activities that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House [or Senate] proceedings with respect to the consideration and passage or rejection of proposed legislation....”25 The framing within the Constitution of this absolute immunity for members of the national legislature with regard to their official legislative activities and conduct was to help assure that the legislature would be a co-equal, independent branch of government by “prevent[ing] intimidation [of legislators] by the executive and accountability before a hostile judiciary;”26 and is seen within our representational form of government as performing the important function of ensuring “that legislators are free to represent the interests of their constituents without fear that they will later be called to task in the courts for that representation.”27 The immunity granted in the Speech or Debate clause in Article I, Section 6, highlights the practical importance of the provision in the Constitution providing the specific, countervailing grant of authority to each House of Congress to discipline and punish its own Members in Article I, Section 5. This authority for each House to discipline its own Members would extend even to protected legislative conduct since an internal disciplinary matter in the House or Senate regarding a Representative or Senator, respectively, is not questioning “in any other place,” but rather is in that place. As such, in addition to providing each House with a tool necessary to protect the integrity of its own proceedings, Article I, Section 5, clause 2, provides that there is some “place,” other than merely the voting booth, that Members of Congress could be made to answer for misbehavior and misconduct in relation to internal official legislative activities.28 25 Gravel v. United States, 408 U.S. 606, 625 (1972). For a discussion of legal developments concerning the Speech or Debate immunity, see CRS Report RL33668, The Speech or Debate Clause: Recent Developments, by Todd B. Tatelman. 26 United States v. Johnson, 383 U.S. 169, 181 (1966). As noted by the Supreme Court in United States v. Brewster, 408 U.S.501, 507 (1972), the Speech or Debate privilege was not intended simply “for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.” See also Kilbourne v. Thompson, 103 U.S. 168 (1881). 27 28 Powell v. McCormack, 395 U.S. 486, 503 (1969). See discussion in Congress and the Public Trust, Report of the Association of the Bar of the City of New York, Special Committee on Congressional Ethics, at 202 (1970): “This (continued...) CRS-11 Since the clause refers to speech or debate “in either House,” and then provides that for such speech or debate “in either House” Members are not able to be questioned in “any other place,” there is an inference that such “other place” would be outside of (the previous referred to) “either House.” If this were the case, then an entity which is not part of the structure of the House or the Senate (that is, which is not the institution itself or one of its duly constituted committees), might conceivably be “any other place” to which the immunity would apply. This would provide a substantial, and perhaps insurmountable obstacle to internal ethics investigations and enforcement actions dealing with any legislative activity of a Member of Congress which is covered by the clause, a problem that an internal ethics “committee” made up of either Representatives (in the House) or Senators (in the Senate) does not confront. If, however, the “place” that the phrase “any other place” refers to is merely considered to be the entire legislative branch, under the theory that the purpose of the clause was to protect individual legislators, and thus the integrity of the national legislature, from intimidation and control of the executive and judicial branches of government, then it could be possible that a joint commission, or an independent entity in the legislative branch may be sufficiently “inside” as to overcome speech or debate challenges to its questioning of Members, and to the delivery and compilation of evidence that the entity might attempt to compel regarding what would otherwise be protected, covered legislative conduct. Certainly, however, the more “independent” an entity is from the House and the Senate, the greater the possibility would appear that the entity would be considered an “outside” entity, and not part of “either House” of Congress. There appears to be no specific judicial decision or case law that is precisely on point as to this particular issue, that is, whether proceedings in a legislative entity other than a duly constituted committee of the House or the Senate, or the House or Senate itself, would be considered in “any other place” in which a Member could not be questioned concerning his or her protected, covered legislative conduct. In one federal court case involving an internal investigation of a United States Senator, however, the court there appeared to lend some credibility to the proposition that only a duly constituted committee of “either House,” acting for the House or Senate itself, would have the authority to question and bring to task a Member of that body for official, legislative conduct. The United States District Court in that case denied a motion to suppress a subpoena from the Senate Ethics Committee to a Senator for the production of certain documents, noting that “the Ethics Committee is the Senate’s tribunal of first resort responsible for enforcing the Senate’s express constitutional power to discipline its members for misconduct.”29 The court then noted: 28 (...continued) [Speech or Debate clause] was intended to free the Congress and individual Members from possible harassment and usurpations by other branches of the government. However, each Member of Congress would enjoy full license to misuse his congressional immunity if each house were not given correlative powers and responsibilities to police Members’ behavior.” 29 Senate Select Committee on Ethics v. Packwood, 845 F.Supp. 17, 22 (D.D.C. 1994), stay pending appeal denied, 510 U.S. 1319 (1994). CRS-12 It is also significant that the Senate may, with respect to certain kinds of senatorial misbehavior, be the only tribunal with the power to punish. The “Speech and Debate” clause declares, “[F]or any Speech or Debate in either House, [Senators or Representatives] shall not be questioned in any other Place.” U.S. Const. Art. I, § 6, cl. 1, which has been held to confer immunity from prosecution on Senators for any “legislative acts,” including those corruptly performed. See United States v. Brewster, 408 U.S. 501....30 The question of Speech or Debate immunity would thus not necessarily be an issue with regard to duties and functions of an “independent” commission or body in the legislative branch concerning the filing and oversight of lobbying disclosure reports and registrations by outside, private lobbyists who are required presently to file and register with the Clerk of the House and the Secretary of the Senate under the Lobbying Disclosure Act of 1995, as amended. Such a commission could be the repository for such reports and registrations, provide access to the reports by the public, give advice and interpretations concerning the registration and reporting requirements, and could refer possible violations of law to appropriate law enforcement authorities or congressional committees. With respect to “ethics” enforcement, that is, investigation and enforcement of congressional ethics standards and complaints concerning Members of the House and Senate, however, depending on the “independence” of such a commission from the House and Senate and from the direct control of Members of the House and Senate, the question of “Speech or Debate” immunity of Members of Congress may arise to provide a substantial impediment to enforcement, fact-finding, and ethics oversight activities when they concern protected legislative conduct. In such cases, the institution of the House or Senate itself, or one of its duly constituted committees, has historically conducted and been responsible, under Article I, Section 5, clause 2, for any such investigations and recommendations for “punishment” carried out by the full House or Senate. Office of Congressional Ethics In the 110th Congress, after an extended period of hearings, discussion, deliberation, and internal debate, a Special Task Force on Ethics Enforcement in the House, established by the Speaker on January 31, 2007, issued a recommendation for an “independent” ethics office within the House of Representatives to initiate review and to screen ethics allegations against Members and staff which are brought to the attention of that office. H.Res. 895, 110th Congress, introduced by the Task Force Chairman, Representative Capuano, proposed an Office of Congressional Ethics [OCE], to initiate reviews and to evaluate allegations of ethics violations by House Members and staff. If, after a two-stage review within specified time limitations, the OCE finds that an allegation “requires further review,” the OCE will refer the matter to the standing ethics committee in the House, the House Committee on Standards of Official Conduct, for proceedings within that Committee. On March 11, 2008, the 30 Id. at 22, note 11. CRS-13 House adopted an amended H.Res. 895, with the passage of H.Res. 1031, 110th Congress, from the Committee on Rules.31 Independence and Make-Up of Office The Office of Congressional Ethics is considered “independent” because the Office is to be managed and supervised by a Board which, although appointed by current Members of the House (six Board members jointly agreed upon by the Speaker and the Minority Leader, recommending three members each), will be chosen entirely from among “outside” persons, that is, persons who are not currently Members or employees of the House of Representatives, or any other current federal official. Furthermore, a former Member of Congress may only serve on the board after being out of office for at least one year, and Board members are to agree not to run for elective federal office for three years after service on the Board.32 Of significance to the “independence” of the Board is the fact that Board members do not serve “at will” of those who appointed them, but rather may be removed only “for cause,” and only upon joint and bipartisan agreement of both the Speaker and the Minority Leader.33 As noted by the Task Force in the majority report on the proposal, among the goals of the Task Force was “to introduce an independent review element by non-Members.”34 Although some commentators have criticized the concept of an “independent,”non-Member office or commission involved in legislative ethics enforcement as an “abdication” or shirking by the House of its express constitutional responsibilities and role of enforcing legislative discipline, other commentators have criticized the Office of Congressional Ethics from a different direction, that is, that the new ethics office is not structurally “separate,” nor completely independent or autonomous from the House of Representatives. It is argued in this latter criticism that the issues of conflicting loyalties and the ability to exercise independent and impartial judgment may continue to be raised in the case of an entity part of the House and whose members are appointed by Members of the House. In assessing the “independence” of any board or office that is to be involved in the investigation, enforcement, and review of internal standards and rules of conduct within the House of Representatives, attention must be given to the constitutional issues raised by the “Speech or Debate Clause” (Art. I, Section 6 of the Constitution), and the procedural barriers that any truly “outside” or “independent” entity (that is, in this case, 31 154 Congressional Record H 1515 - H 1536 (daily ed., March 11, 2008); see H.Rept. 110547, 110th Cong., 2d Sess. (2008). 32 All appointments to the OCE have to be jointly made by the Speaker and the Minority Leader. 33 34 H.Res. 895, 110th Congress, Section 1(b)(6)(C). U.S. House of Representatives, “Report of Members of the Special Task Force on Ethics Enforcement” [hereinafter “Task Force Report”], at 9 (December 2007). The Report was made by the four majority Members of the Task Force, as the minority Members withheld comment at the time of issuance. CRS-14 independent of the House of Representatives) would incur in attempting to question a Member about conduct relating to a Member’s official duties.35 Functions and Duties The principal function and duty of the OCE is to provide an independent, preliminary screening of ethics or conduct allegations against Members and staff to determine whether such allegations, which must bear on the performance of official duties and the discharge of official responsibilities of Members or staff,36 have sufficient merit that they should be formally investigated by the House Committee on Standards of Official Conduct. Although there are no specific provisions for formal “complaints” from parties outside of Congress, the OCE may initiate a “preliminary review” of any matter relevant to official misconduct of Members or staff upon a written request of two members of the Office, as long as the two members are appointed by different political party leaders in the House (thus insuring some bipartisanship before initiating a review of conduct).37 After a 30-day preliminary review of the matter under consideration, a “second-phase” review of 45 days may occur if three members of the OCE affirmatively vote to continue review.38 If there is no affirmative vote to continue, the review of a matter will terminate after a 30-day preliminary review. After the preliminary and second-phase review are completed, the OCE may transmit to the standing “ethics” committee in the House (the House Committee on Standards of Official Conduct), upon the affirmative vote of four board members of the OCE, a recommendation that a “matter requires further review.”39 Prior to the making of any such recommendation, subjects of OCE review are to be allowed to make presentations, orally or in writing, to the board.40 In reporting and referring matters to the House Committee on Standards, the OCE is expressly restricted to stating only findings of fact and a description of relevant information it was unable to obtain, but is expressly prohibited from stating “any conclusions regarding the validity of the allegations upon which” the referral is based, and may not opine as to the “guilt or innocence of the individual who is the subject of the review.”41 35 “Senators and Representatives ... for any Speech or Debate in either House, ... shall not be questioned in any other place.” An “outside” independent entity might thus be severely restricted and hampered in its investigative actions dealing with Members’ official misconduct. See discussion of the Speech or Debate Clause in this Report, supra at 9-12. 36 H.Res. 895, Section 1(c)(1)(A). 37 H.Res. 895, Section 1(c)(1)(A). 38 H.Res. 895, Section 1(c)(1)(C). A second-phase review may be extended by 14 days upon agreement of the majority of members. H.Res. 895, Section 1(c)(2)(A)(ii). 39 H.Res. 895, Section 1(c)(2)(B). The OCE board may also vote to recommend to the Standards Committee a dismissal of the matter, or to transmit to the Standards Committee a statement that the matter is unresolved because of a tie vote. 40 H.Res. 895, Section 1(f)(3). 41 H.Res. 895, Section 1(c)(2)(C)(i). CRS-15 Any formal investigation of allegations or complaints and any referrals or recommendations for congressional discipline made to the House itself will thus continue to be exclusively within the jurisdiction of the House Committee on Standards of Official Conduct. It is, of course, possible that a conduct matter that the new Office considers substantive, upon a recommendation to the House Committee on Standards for “further review,” could still, as critics have argued, be “buried,” “stonewalled,” or not acted upon by the Members of the House who make up the House Committee on Standards, as there is no requirement for the Committee to conduct such investigation, or to make any disciplinary recommendations upon a matter referred to it from the OCE.42 There is thus still the potential for so-called “partisan gridlock,” where the House Committee on Standards, evenly divided between majority and minority party members, could not agree by the required majority of the Members to proceed on a matter. However, because there will be a recommendation from the new Office of Congressional Ethics to further investigate a matter, and because such report from the OCE to the Standards Committee will be made public within a certain limited time frame (if the Standards Committee does not act on the matter or the Committee’s vote “is inconsistent with the recommendation of the Board”),43 there might be more public and political pressure on the Members who make up the Standards Committee to act on a matter that an “independent,” nonMember board has concluded merits investigation. Among its express duties and responsibilities, the OCE is not authorized to provide advice and interpretation of the Rules of the House, and would thus need to rely upon the Members and the staff of the House Committee on Standards for such interpretations, and whether any particular conduct would rise to a violation under the current interpretations and specific advice given by Committee staff. In addition to not offering advice and interpretation, the new Office of Congressional Ethics may not “discipline” any Member or staff employee and may not issue any reprimand, reproval, or other judgment concerning conduct. Critics have raised this issue as a potential failing point of the duties, responsibilities, and independence of the proposed entity. However, if an “independent” entity were to “punish” Members for official misconduct in such a way, there would certainly be issues raised about delegation to a non-Member body the House’s constitutional authority, as well as the House’s constitutional responsibility, to punish its own Members under Article I, Section 5, cl. 2.44 Outside Complaints The resolution establishing the OCE does not provide or set up any formal mechanism or specific procedure for the filing or acceptance of “ethics complaints” or allegations from “outside” sources, that is, from groups, organizations, or individuals who are not current Members of the House. Although no specific procedure or mechanism is established within H.Res. 895, it is clear that the Office of Congressional Ethics may look into any allegation bearing upon official 42 H.Res. 895, Section 3, amending House Rule XI, clause 3(b), adding new paragraph (8). 43 Id. 44 Note discussion of delegation issue in this Report, supra at 5-9. CRS-16 misconduct of House Members and staff, and may “initiate” a preliminary review of ethics allegations on its own. Such actions may be taken upon the written notification of any two members of the Board (as long as one member had been nominated by the Speaker and one by the minority leader), regardless of how the information, evidence, or facts have been presented to the members or staff of the Office.45 Formal complaints by Members of the House may continue to be made under House Rules to the Committee on Standards of Official Conduct. Subpoena Authority In screening and evaluating allegations of misconduct in both its “preliminary review” and its later “second-phase” review, the OCE may ask for and gather information and receive testimony from parties,46 but it does not have the authority to subpoena material or witnesses to force cooperation. Furthermore, the OCE is not given the authority to ask the House Committee on Standards to issue a subpoena on its behalf. This lack of subpoena authority has been one of the focal points of criticisms of the Task Force proposal.47 For those persons who are providing or forwarding allegations of misconduct there is ample incentive, of course, to provide to the OCE any and all material, evidence, and documents supporting a complaint or allegation so that such allegations would not be dismissed out of hand. Even for Members or staff who are the targets or subjects of an initial review of allegations, there appears to be some incentive to cooperate with the OCE, and significant disincentive to be “uncooperative” and appear obstructionist. Such non-cooperation and lack of candor could, at least theoretically, be considered by staff and board members of the OCE indicative of “something to hide,” and thus somewhat supportive of the substance of the underlying allegations, at least to the extent that they would warrant “further review” by the Committee. Furthermore, such non-cooperation and obstructionist actions themselves could constitute conduct that might possibly be included in the grounds for a referral to the House Committee on Standards and have been grounds upon which congressional ethics probes have proceeded in the past.48 Specifically, in referring a matter to the House Committee on Standards, the OCE is to describe the relevant information that it was “unable to obtain” and witnesses whom it was 45 H.Res. 895, Section 1(c)(1)(A). As noted by the Task Force: “Any two OCE board members will be able to initiate a preliminary review of any matter by the board in order to better assess its validity.” “Task Force Report,” supra at 9 (Emphasis added). 46 H.Res. 895, Section 1(c)(2)(D). The OCE is authorized to “solicit such testimony and receive such relevant evidence as may be necessary to carry out its duties.” 47 Other proposals, for example, H.R. 4239, 110th Congress, proposed the independent entity created there be able to issue subpoenas under the signature of both the chair and vice chair, when approved by the Chairman and Ranking Member of the House Committee on Standards of Official Conduct. 48 See, for example, in the Senate, charges which constituted, among other charges, grounds for the Senate Select Committee on Ethics to recommend the expulsion of a Member in S.Rept. No. 104-137, 104th Cong., 1st Sess. 7, including the Senator’s “improper conduct in attempting to obstruct and impede the Committee’s Inquiry ....” CRS-17 “unable to interview,” and the reasons for such inability or failure to do so, along with any recommendations “for the issuance of subpoenas where appropriate.”49 Additionally, the “preliminary” and “second-phase” review process, which is intended to be of short duration, may more readily meet such expectations if the OCE is without subpoena authority. As noted, the process engaged in by the OCE is intended only to be an expeditious, initial screening or initiation process, and the “preliminary review” of the OCE is to be completed within 30 calendar days.50 If the OCE votes by affirmative vote of four members to move onto a “second-phase” review, such review is to be completed within 45 days of initiation (which can be extended by 14 more days upon affirmative vote of a majority of the Board).51 The issuance of a subpoena,52 and if contested the potential litigation through the courts in attempting to quash such subpoena or to require more specificity, would invariably entail substantial delay of this initial process and make the timeliness requirements and thresholds far more difficult to meet.53 49 H.Res. 895, Section 1(c)(2)(C)(i)(II). 50 H.Res. 895, Section 1(c)(1)(B). 51 H.Res. 895, Section 1(c)(2)(A). 52 There are legal issues concerning whether an independent board in the House, made up of persons who are not Members of the House, may be granted subpoena authority by a simple resolution (the vehicle establishing this Office), or whether such authority, as in the past in the case of task forces and commissions, must be given by statute. 53 Subsequent to the introduction of H.Res. 895 other alternative proposals have been made, including H.Res. 1003, and H.Res. 1018. The principal mechanism for change in H.Res. 1003, 110th Congress, would have been to add four persons who are not elected Members of or territorial delegates to the House, but rather are former House Members, to full membership on the current standing committee on ethics, the House Committee on Standards of Official Conduct. Such non-Members, selected by the Speaker and the Minority Leader, would have the “same powers and privileges as the other members of the committee” but could not act as chairman. Although a committee of the House, such as the House Committee on Standards of Official Conduct, could clearly employ staff to assist the committee in carrying out its functions, and could use an “outside counsel,” an advisory committee, or “task force” made up of non-Members or a combination of Members and nonMembers to assist the committee in its investigative work, fact-finding, and to make recommendations, there are certain constitutional issues which may be raised concerning the appointment of persons who are not elected Members or territorial delegates to membership on a congressional committee to exercise the constitutional functions of the House delegated to it by House Rules. See, e.g., Michel v. Anderson, 14 F. 3d 623, 630 (D.C.Cir. 1994): “The appellees, for their part, forthrightly concede that the House could not permit persons other than the traditional delegates to perform the role currently played by the delegates. It would, thus, not be open to the House to authorize by rule, say, the mayors of the 100 largest cities to serve and vote on House committees.” H.Res. 1018, 110th Congress, would establish in the House “an independent commission” known as the House Ethics Commission, made up of six current Members of the House and six former Members of the House (having the six Republican Members and former Members appointed by the “Democratic leader” and the six Democratic Members and former Members appointed by the “Republican leader”). Such Commission would have broad authority comparable to the current standing ethics committee to investigate alleged (continued...) CRS-18 53 (...continued) violations, to hold hearings and take testimony, to issues subpoenas, and to report directly to the House findings and recommendations for discipline. Additionally, this commission would be authorized, on its own accord, to issue “any letter of reproval or admonition” to a sitting Member of the House. It may be noted that certain powers and functions of such a proposed commission, such as the power to issue a subpoena on behalf of the House, which are delegated in this proposal to non-Members by simple resolution, as opposed to delegation by law, may raise unique and unprecedented issues on the delegation of such authority. Generally, when such authority is provided to non-Member bodies such as legislative task forces and commissions, such authority is provided in law. See, for example, the 9/11 Commission authorization, in Intelligence Authorization Act for Fiscal Year 2003, P.L. 107-306, § 605(a)(2)(ii)(I-II), 116 Stat. 2383, 2410 (2003).