Today's "pipe" dream ... and no, I have not been "smokin'"

Regulating Congress

By Ezekiel J. Emanuel and Dennis F. Thompson

January 12, 2006

IN THE WAKE OF the Abramoff scandal and the DeLay difficulties, Congress is scurrying to enact new ethics rules governing lobbying. But as with other ethics reforms, the changes will not make much difference unless the rules are enforced.

Even the most minimal kind of regulation -- disclosure -- has been widely disregarded in recent years. Since 1998, lobbyist organizations failed to submit about 14,000 disclosure documents as required by law. Members and staff fail to report travel as required by House and Senate rules.

Without more effective enforcement, new rules will be evaded or ignored like the old rules.

Why has enforcement been so lax? As in other professions, self-regulation among politicians does not work well. Congressional ethics committees are prone to partisan paralysis or bipartisan collusion. The rule seems to be: If we investigate a Republican, we have to investigate a Democrat (and vice versa); therefore, we had better not investigate anyone. The conflicts in the institution are pervasive: The chairman of the House committee with jurisdiction over lobbying reform, Representative Robert Ney, Republican of Ohio, is himself implicated in the scandal surrounding lobbyist Jack Abramoff.

What is needed is an independent body to avoid the institutional conflict of interest that results when Congress regulates itself.

One model is a congressional ethics board consisting of seven citizens who are knowledgeable about legislative ethics and congressional practice. Three would be appointed by the majority leader and three by the minority leader of each chamber. The seventh, the chair, would be chosen by the other six. No sitting members, family or business associates of members, lobbyists, or others with connections to Congress could serve. Its membership, budget, and final recommendations would be subject to approval by the House and Senate, satisfying the constitutional requirement that each house ''may" determine its own rules and punish its members. But it should also be enough to give the body more independence and credibility than the current ethics committees enjoy.

The board would have two main responsibilities. First, its professional staff would evaluate and investigate ethics charges against members and staffers. The board, like a grand jury, would decide whether to bring the charges forward to the full House or Senate. Second, based on its experience, the board could propose ethics rules. Each house would commit to holding an up or down vote within 90 days, or let the proposed rules become effective. The board would give added meaning to the democratic principle that citizens should hold their representatives accountable. Accountability can and should mean more than each of us voting for our own representative. All of us have a stake in what all members do, because all of us have a stake in the integrity of the institution.

The board would also be well suited to regulating the conflicts of interest prevalent in the world of congressional lobbying. Conduct far short of the explicit quid pro quo transactions in which Abramoff and his friends specialized can still corrupt the democratic process. Winks and nods exchanged in sky boxes, at golf tees, and on private jets -- even with bundled campaign contributions -- may not constitute bribery and violate the law. But these habits create a culture of coziness that gives those who are willing and able to pay privileged access to the legislative process. A congressional ethics board could scrutinize the behavior in this culture from the perspective of a reasonable citizen, who, like most of us, does not have enough information to assess the motivations of members and lobbyists. (Virginia sez: Canada's Gomery commission cited that the sponsorship scandel was the product of a culture of ENTITLEMENT.)

Just as the police complain about civilian oversight boards and physicians object to governmental medical boards, politicians will not welcome this proposal. They will worry that the members of an independent board will not understand the complexities of the job; that they will be overzealous; (hey! Cool! Sounds exceptionally good to me!) and that they will be captured by special interests. These risks are real, but they are not as serious as the actual effects of the current system on the public confidence in Congress. The risks can be minimized by ensuring that the board members are truly independent, and its proceedings transparent.
It is time to eliminate the ultimate conflict of interest in Congress -- an institution judging itself.

Ezekiel Emanuel is a bioethicist and author of the conflict of interest rules for the American Society of Clinical Oncology and Academy/Health. He also wrote ''No Margin, No Mission: Health-Care Organizations and the Quest for Ethical Excellence."Dennis Thompson is director of Harvard University's Edmond J. Safra Foundation Center for Ethics and author of ''Ethics in Congress" and ''Political Ethics and Public Office."

© Copyright 2006 Globe Newspaper Company.