As you all know by now, former president Donald Trump was convicted yesterday in New York on 34 felonies related to the 2016 election. Basically, he violated state campaign laws by coming up with an excessively complicated method of covering up a story of marital infidelity from 2006.
I mention this because, if Trump had been a member of the House, he'd have been facing both a legal and ethical investigation.
If he'd been a Senator, it would have looked pretty much exactly as it does for Sen. Bob Menendez (D-NJ) who's currently on trial in the same courthouse for bribery and acting as an unregistered foreign agent: a legal investigation and no other action. Why would it look the same? Because the Senate is notoriously lax about pursuing ethical violations in its ranks. A misbehaving member might, eventually, get a letter of admonition.
The House though, for all its faults, has a comparatively active Ethics Committee. The same legislator can, with a single action, violate both laws and House rules. For example, misusing campaign funds can be both a crime and a violation of House rules. Just ask Duncan Hunter, former representative for CA-50. Or, they can just violate House rules - see the many, many, many entries for Rep. Greene (R-GA14), who refused to wear a mask for most of the most active period of the COVID pandemic.
So! Today we'll do a little primer on the House Committee on Ethics, its companion entity the Office of Congressional Ethics (OCE) and how it all works.
What's the difference between House Ethics and OCE?
The House Committee on Ethics has 8 members, all representatives, split evenly between the two parties. The chairship belongs to the majority party. In order to act, the Committee must have a vote with a majority of members in agreement, meaning at least one member of the minority party has to agree to whatever is being voted on. Despite complaints to the contrary from those being investigated, in practice, Ethics is probably the least partisan of all committees because it does require bipartisan agreement. For example, the most recent investigation to be started is of Rep. Henry Cuellar (D-TX28). The Committee voted unanimously to investigate, meaning the Democratic members were in agreement too.
The Office of Congressional Ethics (OCE) is a separate entity, with no representatives involved. Anyone can submit complaints to OCE, they investigate, and, if warranted, they will recommend that House Ethics take up the investigation. Most House Ethics cases start at OCE.
How do ethical investigations usually start?
- A referral from OCE to House Ethics, noted above
- An arrest of a legislator, occasionally for things like drug possession, once for a false fire alarm, but mostly for protests.
- An indictment, usually federal, as with Cuellar
- Rarely, from the House Ethics Committee itself, as with former representative George Santos
What typically happens?
In cases of arrest, if the legislator pays or agrees to pay the fine associated, Ethics will often close out the case. An exception was the censure for Rep. Bowman on the fire alarm. Former Rep. Radel, who was arrested for cocaine possession, probably would have had more investigation too, but he resigned.
In all other cases, usually if the case crosses over into legal violations, House Ethics will defer to the Department of Justice until the legal case is complete. Typically, they close out their investigation at that point. Rep. Gaetz (R-FL1), however, is an exception. Even though the Department of Justice decided not to charge him in a human trafficking case, House Ethics continues to actively investigate him.
In the 118th Congress, the Ethics Committee has been a bit more aggressive. In the cases of both Santos and Cuellar, they continued / are continuing their investigations at the same time as the Department of Justice. Indeed, Santos got expelled from the House last year and he has yet to start his criminal trial.
Sometimes, cases are dismissed because the Committee genuinely thinks there's no basis for the charges, but much more often, cases are closed because the member loses or resigns and the Committee no longer has jurisdiction.
How long does it take?
Protest arrests and the mask cases are / were all basically pro forma. The committee meets / met, determines the status, notes the fines and closes it out. Other cases typically can take a full Congress. There are many possible reasons for this, not the least of which is that there are a lot more legislators than committee staff. Also, some legislators fight back hard.
A case can be carried over from one Congress to another if the member remains in the House. Rep. Cathy McMorris Rodgers (R-WA5) had a case that started in 2013 and ended in 2019. It carried over four separate Congresses. She was accused of misusing campaign funds and ordered to pay back $7575.95 in a public admonition.
The longest outstanding case right now appears to be Rep. Raúl Grijalva (D-AZ7) although we can't confirm that it's either still going or has been closed. If it is still open, it has been since 2018.
What are the penalties?
Formal penalties are fines, public admonitions, censure and expulsion. Informal penalties can be inferred from legislator actions when faced with Ethics investigations: resignations and loss in their next primary or general election being most common. George Santos would not have been expelled if he'd been willing to leave, but party pressure had no effect on him, so the Ethics Committee, after releasing an extremely damning report, pushed for the expulsion vote (the third!) and this time it succeeded.
Is there a list of all the cases?
Why yes there is! It's the GovTrack Misconduct Database. You can view by type case (corruption, sexual harassment, campaign violations, etc) and outcome (censure, fines, expulsion, etc). We have a chart at the top showing a significant rise in cases in recent years. Don't feel too pessimistic though.
Rules, Congressional structure, membership numbers and expectations have all changed over time. The Ethics Committee and its predecessor didn't even exist until the late 1960s. Sexual harassment certainly happened, but it wasn't a priority before about 10 years ago. Financial misconduct has always been the driver of the majority of cases, but the kind and volume have both changed with the economy. And, unlike in the 18th and 19th centuries, physical violence between members isn't a regular event.
So don't look at our database and think Congress is worse than it used to be. It's probably better in that, in the House at least, there's more effort to enforce ethical behavior and more expansive definitions of what ethical behavior is.
