Cleaning House: Congressional Commissioners for Standards

Abstract

Given the profusion of congressional ethics scandals over the past two years, it is unsurprising that the new Democratic majority in the 110th Congress has made ethics reform a priority. But although both the House and the Senate have tightened their substantive rules, the way the rules are enforced has received almost no attention at all. This Comment argues that ethics enforcement should remain within the houses of Congress themselves. Taking enforcement power away from the houses is constitutionally questionable (under the Speech or Debate Clause), structurally unwise (given general concerns about separation of powers), and institutionally problematic (as it would reinforce the public perception that Congress is simply unable to control itself). However, the congressional ethics committees have proven unwilling or unable to function as effective disciplinary bodies. The Comment therefore proposes that each house create its own Commissioner for Standards, modeled on the Parliamentary Commissioner for Standards in Britain. The Comment analyzes the main features of the British office and suggests a number of improvements for adoption in the United States. The institutional design described in the Comment has the dual virtues of keeping ethics enforcement within the houses of Congress while simultaneously minimizing the possibility that ethics enforcers will be captured by those they are meant to regulate.