House and Senate Ethics Committee Investigations
Recent news about questionable conduct, both pre- and post-election, has resulted in an increased focus on the internal process for Congressional oversight and discipline. Unlike most entities, the U.S. Congress is self-regulating when it comes to the conduct of its Members. While this may appear unusual or self-serving, this authority to self-police conduct derives directly from the U.S. Constitution.
Of course Members of Congress, Senators, and congressional staff are, with limited exceptions, subject to the laws of the United States. However, the House and Senate are the only entities that both determine their own rules of conduct and determine if those rules of conduct have been broken. That is, the final determination of whether or not a Member of Congress, Senator, or congressional staff has violated House or Senate ethics rules is made by the House Committee on Ethics and the Senate Select Committee on Ethics (referred to as the House and Senate Ethics Committees) respectively.
Article 1, § 5, Clause 2 of the United States Constitution:
"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and with the Concurrence of two thirds, expel a Member."
Both the House and Senate Ethics Committees are authorized to investigate allegations of improper conduct that may reflect poorly upon the House or Senate, may be violations of the law, violations of the House or Senate Code of Official Conduct, and violations of the rules and regulations of the House or Senate. Based on such investigations, the House and Senate Ethics Committees may recommend disciplinary action, up to and including recommendations of expulsion from their respective chambers, and report violations of the law to proper federal and state authorities. The Ethics in Government Act of 1978, as amended, designates the House and Senate Ethics Committees as the supervising ethics offices for Congress.
The House and Senate Ethics Committees have jurisdiction over Members, Officers, and employees of the House and Senate. Once a Member, officer, or employee resigns from the House or Senate, the House and Senate Ethics committees lose jurisdiction over that individual and, with one notable exception, any pending investigation will cease. Likewise, the House and Senate generally, with the exception of financial disclosures, have not exercised jurisdiction over a candidate until they have been sworn in as a Member of Congress or Senator. It is unclear whether conduct engaged in prior to taking office can serve as a basis for expulsion. The Senate Ethics Committee has refused such jurisdiction in at least one matter, but it is not clear how much precedential value future Senate Ethics Committees would assign to that matter.
Despite what seems to be a common misunderstanding, the ethics committees do not have the ability to impose criminal sanctions; the ultimate sanction the ethics committees can impose is a recommendation to expel a Member. Once the committee makes this recommendation, a vote is taken by the entire House or Senate and a 2/3 majority is required to expel a member.
The most recent Senate expulsions occurred in 1861 and 1862 when 14 Senators were expelled for disloyalty during the Civil War. More recently, the Senate Ethics Committee voted unanimously in 1995 to expel former Senator Bob Packwood, who resigned before the matter was voted on by the full Senate. The most recent House expulsion was Congressman Jim Traficant, who was expelled in 2002.
The ethics committees also have less severe punishments than expulsion, often resulting in a censure known as an admonition– either public or private. Recent public examples include Letters of Admonition for former Senator Larry Craig and Senator Robert Torricelli.
Either ethics committee may also refer matters to executive branch agencies including the U.S. Department of Justice (DOJ) or the Federal Election Commission (FEC), and the reverse is also true. Referrals to or from relevant state agencies are also possible.
In the case of concurrent investigations by the House or Senate Ethics Committees and the DOJ, typically, the DOJ will ask the House or Senate Ethics Committees to suspend their investigations until the DOJ investigation is complete. It is the practice of the ethics committees to defer to the DOJ, pending completion of DOJ’s investigations, because ultimately the criminal sanction is considered more severe, and a concurrent investigation could result in efforts by the ethics committees to grant immunity to principals or witnesses that could impede the DOJ investigation. It is also common for the FEC to investigate conduct that is the subject of an ethics committee review – either concurrently or subsequently. It is not clear if there is an established protocol for suspending investigations under this circumstance.
On the House side, the Office of Congressional Ethics sometimes conducts the first phase of an investigation, which is then either closed or referred to the House Ethics Committee for further review. The House Ethics Committee may also investigate any matter without prior involvement of OCE. Unlike the House Ethics Committee, the OCE does not have the power to compel testimony, subpoena documents, determine whether a violation has occurred, or impose sanctions. The Senate considered, but ultimately rejected the creation of a similar entity in 2008 – the Office of Public Integrity.