Disparate Impact: Black Lawmakers and Ethics Investigations

A disproportionate share of cases have been brought against Congressional Black Caucus members. African-American lawmakers would like to know why.

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CLARIFICATION: The original version of this article suggested that one of the two Ethics Committee aides placed on leave had possibly declined to answer questions in the independent inquiry into the investigation of Rep. Maxine Waters. The aides' attorney, Richard Sauber, said that both testified voluntarily.

Emanuel Cleaver, a Methodist minister and the chairman of the Congressional Black Caucus, stood up and began searching his desk for a Bible. Cleaver wasn't looking up a particular verse or Psalm. He grabbed the Good Book for emphasis. He wanted to hold it in his hands as he declared, with a firm shake, that the way Congress investigates the ethics of its own lawmakers is horribly broken.

"I think," Cleaver said, "the facts speak for themselves."

The facts say this: African-Americans make up 10 percent of the House, but as of the end of February, five of the sitting six named lawmakers under review by the House Ethics Committee are black. The pattern isn't new. At one point in late 2009, seven lawmakers were known to be involved in formal House ethics inquiries; all were members of the Congressional Black Caucus. An eighth caucus member, Rep. Jesse Jackson Jr. of Illinois, had also been under investigation, but his probe was halted temporarily while the Justice Department undertook an inquiry of its own.

All told, about one-third of sitting black lawmakers have been named in an ethics probe during their careers, according to a National Journal review.

Only two members of Congress have been formally charged with ethics violations in recent years and have faced the specter of public trials -- Reps. Charles Rangel of New York (censured) and Maxine Waters of California (investigation ongoing). Both are black. There are no African-Americans in the Senate. Remember the most recent black senator, Roland Burris of Illinois? Reprimanded by the Senate Ethics Committee in 2009.

Those are the facts, as Cleaver said. The question is why so many African-American members have been in the ethics spotlight.

In interviews with more than a dozen members of the CBC, an unsettling thread emerges: They feel targeted. There could be no other explanation, many said, for what they see as disproportionate treatment at the hands of ethics investigators. They describe a disquieting reality of being black in Congress today: a feeling that each move they make is unfairly scrutinized. "We all feel threatened," said Rep. Hank Johnson, a Georgia Democrat, as he sat by the fireplace off the House floor. "If the only reason that you would suffer a complaint is because of your skin color, that is a cause for concern."

It is a grave accusation: Could the congressional ethics process, ostensibly safeguarded by professional staff members and by a bipartisan structure that allows nothing to move forward unless Democrats and Republicans agree, be singling out African-Americans?

Other explanations are possible. Perhaps more ethical issues arise within the black caucus than within the House as a whole. Many of its members occupy safe seats, after all, and have been in Washington for decades. Maybe some of them grew too comfortable or insulated, and they failed to track changing ethics standards.

Or maybe they're disproportionately the victims of an investigation process that relies heavily on outside information from watchdog groups with their own agendas, or on big-city media prone to examining politicians in their urban backyards. Or maybe their white counterparts are quicker to retain high-priced counsel to make ethics inquiries disappear before they ever become public or have quickly resigned rather than face a probe.

Whatever the reason, the disparity has had a profound effect on African-American legislators on Capitol Hill.

"People walk around on eggshells," Cleaver said, "doing everything they can to avoid attention without retreating from the work that is front of us."

A "POLICE FORCE OUT OF CONTROL"

Congressional ethics cases do not develop in a vacuum. In the House, probes can begin in two ways. The secretive House Ethics Committee, run by equal numbers of Democrats and Republicans, can initiate an inquiry. Or the newer Office of Congressional Ethics, an independent prosecutor of sorts created by then-House Speaker Nancy Pelosi, D-Calif., as part of her pledge to "drain the swamp" in Washington, can refer a case to the Ethics Committee.

The two panels are supposed to work in tandem. Behind the scenes, however, they have tussled in a bureaucratic turf war over who are the Hill's real corruption cops. Privately, veterans of both panels blame the other for the skewed racial statistics. Ethics Committee loyalists say that nearly all of the cases involving black lawmakers that they have investigated came from OCE referrals. For their part, backers of that office note with suspicion that the Ethics Committee has dropped or quickly resolved many of their cases involving white members, while those against African-Americans have lingered or resulted in penalties.

The OCE lacks subpoena power and can mete out no punishment, but it has another tool that has proved in many ways as potent: Its findings are made public. Watchdogs and ethics reformers have hailed the office for lifting the veil of secrecy on what has long been an insular process dominated by lawmakers resistant to policing their own colleagues. But it is in naming names that the OCE has drawn scrutiny. Since its inception, the office has recommended that the Ethics Committee undertake further investigations in 26 cases involving sitting House members. Twelve of those have targeted African-Americans, including Rangel, Waters, and Jackson.

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Shane Goldmacher is a congressional correspondent for National Journal.

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