February 10, 2007
OP-ED CONTRIBUTOR
Follow That Lobbyist
By RANDY EVANS
Atlanta
THE Democratic majority in Congress has made ethics reform a centerpiece of its agenda — and not a moment too soon. The list of members of Congress from both parties who have either pleaded guilty to or are under F.B.I. investigation for crimes involving their offices is embarrassing.
Unfortunately, the latest reforms (some adopted in the House by rule and others proposed by the Senate in legislation) tighten restrictions without actually addressing the real reasons that Congressional ethics rules have been ineffective in the past. The result is tougher rules that will rarely, if ever, be enforced. Here’s why.
First, regardless of what anyone might claim, there remains no mechanism for policing those at the heart of Congress’s ethics problems: lobbyists willing to violate the rules.
Under the new ethics reforms (as well as under the previous rules), the House Committee on Standards of Official Conduct, the Senate Ethics Committee and the Federal Election Commission do not have the jurisdiction to detect, investigate and punish lobbyists who give prohibited gifts to representatives, senators or their staffs.
The Congressional ethics committees can regulate the conduct of, and punish, only lawmakers and their staffs. Lobbyists can be investigated by the Justice Department, but only under restrictive bribery statutes that require proof of a direct link between payments or gifts by lobbyists and actions by public officials.
Consequently, unethical conduct by lobbyists that does not reach the point of bribery or an illegal campaign contribution (which does fall under the Federal Election Commission’s jurisdiction) will remain unregulated.
Second, even with the new rules, only members of Congress or someone with a member’s permission can file a complaint with the House ethics committee. But limiting who can file a complaint effectively precludes anymeaningful enforcement.
Whenever a Congressional ethics scandal erupts, Americans wonder why nobody said anything. Why, for example, did someone like Randy Cunningham, the disgraced representative from California, routinely violate Congressional gift rules with seemingly little concern about an ethics investigation? The answer, in my experience, is that most members of Congress are so afraid of being accused of taking (knowingly or unknowingly) banned gifts themselves that they would never allege that a colleague had done so — no matter how clear the violation. No one wants to set the standard by which he might someday be judged.
This problem will persist even under tighter restrictions like the new gift ban. After all, the problem in recent years wasn’t that the gift limit — $50 per gift — was too high; it was the absence of effective oversight and enforcement of that limit. As long as these new rules, like the old ones, rely only on lawmakers to report violations, nothing will change.
Simply put, there will continue to be an unchecked circle of improper gifts by lobbyists (who cannot be punished) to lawmakers (who have no incentive to report them). As in the past, only when gift-giving reaches the level of a crime will the F.B.I. or the Department of Justice step in and start an investigation. Nothing in these touted ethics reforms solves this problem.
So what’s the solution?
Ultimately, the most effective deterrent against ethics violations is public scrutiny, based on accurate and timely information. That’s why it’s imperative that ethics reform begin with full disclosure by lawmakers, their staffs and lobbyists.
Each member of Congress should keep a log of every gift received by his office and file it electronically at least quarterly. The same requirement should apply to Congressional staffers. Lobbyists should electronically file monthly public disclosures of all lobbying expenses, specifying who used what tickets, who ate what meal, who played how many rounds of golf. All these disclosures should be posted on the Internet.
Along with transparency, the best way to prevent, detect and punish corruption is to enforce rules against all violators, whether they work inside the Capitol or on K Street.
It is therefore imperative for Congress to establish an independent commission, akin to the Federal Election Commission, with jurisdiction to regulate the conduct of lobbyists just as the Congressional ethics committees regulate the conduct of members and staffs. The commission must be responsible for enforcing the new gift ban, ensuring that all disclosure requirements are met, and setting and imposing penalties for rule violations.
But even an independent commission empowered to investigate violations won’t be effective without significant modifications to the reporting process. It will have nothing to investigate.
Thus, any person should be able to file a complaint. (Subject to some time restriction, of course — say, 60 days before an election, in order to prevent abusive filings for political gain. Anyone who files a complaint found to be frivolous should be subject to a penalty.) Complaints should be acted on promptly, and either be dismissed or investigated.
Effective ethics reform in Congress requires real changes in the reporting requirements for lawmakers and their staffs, enhanced disclosure requirements for lobbying activities, better transparency, public participation via the Internet, and an independent commission to enforce the rules against both the donorand the recipient of improper gifts. Anything less is just cosmetic.
Randy Evans was outside counsel to former Speakers of the House Newt Gingrich and J. Dennis Hastert.