When the Department of Justice announced in 2010 that it was dropping its investigation against then-Sen. John Ensign, the Senate's Select Committee on Ethics continued its own inquiry.
The two-year investigation included 72 interviews and resulted in a damning 2012 report criticizing the Nevada Republican and recommending that Justice and the Federal Election Commission reopen their probes. The senator resigned before the committee got the chance to recommend expelling him from the Senate. But the ethics panel's work prompted the FEC to charge Ensign a $32,000 fine—the only formal penalty he has received to date.
Since those events, the committee appears to have done almost nothing else—at least publicly.
Despite numerous scandals in the Senate over the last two years, the panel responsible for investigating ethical lapses in the upper chamber—led by Chairwoman Barbara Boxer of California and Vice Chairman Johnny Isakson of Georgia—has not publicly acted on any violations by senators since May 2012. The committee dismissed every other case that came before it in 2012 and every new complaint filed in 2013.
This glaring lack of public action and transparency has government watchdogs questioning the Senate's ability to police itself.
"The Senate ethics process remains a black hole, providing so little public information it is next to impossible to assess whether they are functioning effectively," complains Meredith McGehee, policy director at the Campaign Legal Center.
McGehee and other government watchdogs, such as Public Citizen's Craig Holman—who has been keeping tabs on case inaction and dismissals by the committee—say something needs to be done. They and other members of what is dubbed the Ethics Working Group, led by the Campaign Legal Center, are planning an event in mid-October to announce proposals to improve the congressional ethics process.
Topping their list, says Holman, is that the Senate should create an independent office for ethics investigations, modeled after the Office of Congressional Ethics established in the House in 2008, which they say has brought more transparency for the public. That nonpartisan office was created in response to complaints that the House Ethics Committee alone was not adequately policing improprieties of fellow House members—a notion that seemed obvious in the wake of the Jack Abramoff scandals.
The idea was for the OCE to provide preliminary, independent reviews of ethics accusations against House members and staffers, recommend when further investigation is warranted by the Ethics Committee, and to also make its findings in meritorious investigations a matter of public record. Unlike the House and Senate ethics committees, which publish little if any information on investigative matters, the OCE publishes all of its findings and investigative material online after a matter has been referred to the ethics committee.
Almost from the start, the activities of the OCE's board and small group of lawyers prompted public turf wars with the House Ethics Committee itself.
And it has drawn other detractors—and calls for its budget to be slashed or even abolished. Perhaps not surprisingly, some of the harshest attacks have come from House members who have found themselves to be subjects of OCE conclusions not to their liking. Among them is retiring GOP Rep. Tom Petri of Wisconsin, who just this week blasted a newly released OCE report raising ethical questions about his activities on behalf of two companies in which he owned hundreds of thousands of dollars in stock.
"But I remain hopeful that the Ethics Committee—and anyone objectively reviewing the record—will conclude that I have acted properly and complied with House rules," Petri said. "Any suggestion to the contrary by the Office of Congressional Ethics report is untrue, biased and incomplete."
Holman and McGehee say there are improvements that could be made to make the OCE—which itself comes up in January for reauthorization for the next congressional session—to work even better. But they insist that the office has gone a long way to rebuilding public confidence in a House ethics process, whose reputation had fallen. And they say it's time for a similar entity to help deal with what they describe as a silence that has enveloped the Senate ethics process.
"The Senate Ethics Committee is not doing its job. Despite many news stories of scandal and transgressions among senators, the committee has dismissed every complaint filed with it over the last couple years," said Holman. "Something is gravely amiss here."
Holman, McGehee, and Lisa Gilbert, director of Public Citizen's Congress Watch, had even harsher words in a June 16 letter to Boxer and Isakson, after meeting with the committee's staff director.
"While we appreciate that ongoing investigations are sensitive and necessitate discretion, the Committee has taken these understandable considerations to the extreme," they wrote. "Information goes in and no information is generally and routinely available until (with no public timetable) a final disposition is reached. This gives the impression of a 'whitewash' that protects Senate members at the expense of upholding reasonable ethical standards."
The Senate Ethics Committee's last public action was to send and publish two letters of "qualified admonition" to GOP Sen. Tom Coburn of Oklahoma and to an aide for former Republican Sen. Jim DeMint of South Carolina on May 25, 2012, for incidents related to the Ensign scandal.
Since that time, the committee has not taken any further action against any member of the Senate or their staffs. The committee reports having received 45 other complaints in 2012 and dismissed all of them, either because the panel lacked jurisdiction or because of insufficient evidence. In 2013, the committee did the same thing, dismissing all 26 cases referred to it.
An additional, but unidentified, case was carried over from 2012 and considered further by the committee in 2013, according to that document. That case was still pending in January of this year, and it is unclear whether it has yet been resolved.
The committee's policy is not to comment on complaints, nor pending or active investigations, and it would not comment on the substance or status of any complaints filed in 2014, or any year prior, for this story.
"The Senate Ethics Committee has a proud tradition of complete bipartisanship in investigating every complaint that comes before it and, when appropriate, admonishing, censuring and even recommending expulsion for violations of ethics rules and laws," Boxer and Isakson said in a joint statement to National Journal. "In recent years, the Committee has significantly increased its efforts to educate and train the Senate community to prevent misconduct and ensure that Senators and staff live up to the highest ethical standards."
The committee did conduct more ethics seminars for new members and congressional offices in 2013 than it had in recent years. And the panel did respond to more than 700 requests for guidance on issues of ethics from senators and their offices in 2013.
A person familiar with the committee's process said that a "large majority" of complaints received by the committee simply do not fall under its jurisdiction. Some involve allegations against President Obama and other executive branch officials, while others complain of disagreements with a senator's floor speech or concerns involving judges—none of which fall under the purview of the Senate committee, the person said.
Participation may also be a factor. Since 2007, the most recent year for which the committee has public data, the number of complaints filed with the committee has dropped drastically, from 95 that year to just 26 in 2013. The panel has also received fewer requests for ethical advice from members of the Senate and their staffs in recent years.
"This is fine for them to say," responded McGehee, "but the Senate ethics process remains so opaque we are just supposed to take their word for it? That's not good enough."
The total number of complaints filed in 2014, and whether any of them have been acted upon by the committee, will not be known until the panel files its annual report in January of next year. Even then, neither the subjects of any inquiry nor the substance of those complaints will be made public.
At least one of the cases dismissed in 2013 was publicized, though not by the committee itself. Sen. David Vitter, R-La., filed a complaint with the Ethics Committee last year against Senate Majority Leader Harry Reid and Boxer, the committee's chairwoman. Vitter accused the Democrats of resorting to bribery after he held up an energy bill by demanding consideration for his own amendment that would have repealed federal contributions to members' health care plans under the Affordable Care Act. He filed the complaint against Reid and Boxer following reports that Democrats were considering a counter-plan to prevent any senator who had solicited prostitutes—a direct shot at Vitter—or who voted for Vitter's amendment, from receiving the federal contributions.
The committee dismissed the case for a lack of evidence, but voted against making that decision public. Instead, as with a handful of other complaints, the letter sent to Vitter, Reid, and Boxer—who did not participate in the investigation—was leaked to the media by someone outside of the committee.
Investigation is not, however, the Senate Ethics Committee's only duty. The panel is also responsible for advising senators on their personal financial disclosure reports—a filing system that went online and became fully searchable for the first time this year. In just its first year, 90 percent of filers used the new online system, Boxer and Isakson noted.
In 2013, committee staff also handled more than 10,000 requests for advice from senators and their staffs and issued about 755 advisory letters, the vast majority relating to gifts and travel, in response to those requests.
But critics like Holman aren't impressed, saying the panel is clearly failing to do its job.
"The reason why the Senate Ethics Committee is shirking its responsibility is because the committee operates wholly in the shadows, unaccountable to anyone," said Holman.
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