Disparate Impact: Black Lawmakers and Ethics Investigations

The steady drumbeat of allegations and accusations has damaged the image of the Congressional Black Caucus, which likes to call itself "the conscience of the Congress." As a result, African-American lawmakers have been in a cold war with the office almost since its creation in 2008. They've met privately with investigators, complained to Pelosi, and introduced legislation to curb its powers. When Rep. Marcia Fudge, D-Ohio, introduced a measure in 2010 to shrink the office's authority, her bill had 19 cosponsors, all of them fellow members of the black caucus. A year later, when African-American Rep. Melvin Watt, D-N.C., pushed on the floor to slash the office's funding by 40 percent, 25 of the 29 Democrats who voted with him on the failed measure were black.

The office is "like a police force out of control," said Rep. William Lacy Clay Jr., a Missouri Democrat whose father was a founder of the black caucus, adding that the disparity reflects larger law-and-order issues that plague African-Americans. "What the process mirrors is our criminal-justice system," he said. "Look at the fact that African-Americans make up about 12.5 percent of the total national population, but we are much higher in the percentages in prisons and on parole and under criminal investigation, and all that."

Omar Ashmawy, chief counsel to the Office of Congressional Ethics, bristled at the suggestion of any bias in the office's approach. Three of his four investigating counsels are minorities. His chief deputy is African-American. And one of the office's eight board directors is a former CBC chairwoman.

"Anybody who would make that accusation is not living in the real world," said Ashmawy, who is Arab-American.

"A CONSTANT PATTERN OF COINCIDENCE"

In 1988, a young Washington lawyer named Abbe Lowell noticed a troubling trend. A wave of investigations across the country was hitting leading black politicians, from then-Rep. Harold Ford Sr. of Tennessee to prominent black mayors such as Andrew Young in Atlanta and Marion Barry in Washington, Lowell, who represented some of the accused black officials, penned an op-ed about what he saw as unspoken biases at work.

"A white member of Congress who maintains two houses and sends his children to private school is not considered unusual," he wrote. "When a black does the same, someone wants to know where he gets his money."

In other words, a double standard.

Twenty-four years later, Lowell, a go-to lawyer for the city's political elite who has represented lawmakers before the Ethics Committee, said that his analysis still stands. "The numbers alone indicate that the issue is alive and not well," he said.

Few have looked closer at the racial disparity than George Derek Musgrove, author of the recent book Rumor, Repression, and Racial Politics: How the Harassment of Black Elected Officials Shaped Post-Civil Rights America. Musgrove, an assistant history professor at the University of the District of Columbia, said that his research showed that between 1980 and 1992, roughly one-third of black members of Congress were targeted by federal authorities for investigation. Two were indicted, he said; none was convicted.

"At a certain point, a constant pattern of coincidence is no longer a coincidence," Musgrove said, adding that he was not presuming the innocence of the accused, then or now. But, he said, "the issue isn't whether or not these people are guilty. The question is whether Congress is being policed equally."

In November, Rep. Laura Richardson, D-Calif., gave voice to the tensions running through the black caucus. After the House Ethics Committee opened its second full-scale investigation of her in as many years, she lashed out. Why, she demanded, didn't the panel "take the same actions against other members -- of whom the overwhelming majority are white males?"

Rep. Bennie Thompson, D-Miss., who was cleared in an ethics probe in 2010, said that it comes down to the issue of "threshold" -- that the bar is lower for launching an inquiry when it comes to African-Americans. A Mississippi Democrat who cut his political teeth as a young civil-rights activist in the late 1960s, Thompson contends that investigators are more willing to probe the alleged wrongdoing of blacks. "I'm from the South, and I've seen double standards all my life," he said. "And so the standard here is no different than the standard I experienced as a young person, not having a choice of going to the school that I wanted to, or eating at the lunch counter that I wanted to. That double standard -- in the sense of the threshold -- is alive and well in this body."

Violations of House ethics laws aren't crimes. No one goes to jail. Rangel, the silver-maned veteran whose ethics case made headlines for years and who was publicly censured on the House floor, still holds his Harlem seat. (The probe, however, cost him his prestigious chairmanship of the Ways and Means Committee.) And an ethics inquiry, even when it is resolved in a member's favor, has consequences. The reputation takes a hit, the bank account, too. Rangel survived without a serious challenge, but others may not be as fortunate. Both Jackson in Chicago and Richardson in Southern California face tough primary opponents -- and their ethical woes promise to be fair game. Jackson's challenger, former Rep. Debbie Halvorson, launched her campaign last fall by declaring that residents of the district deserved a representative "free from the ethical distractions that plague" the incumbent.

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Shane Goldmacher is a congressional correspondent for National Journal.

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