Parsing Senate Ethics

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Like "military intelligence," "Senate ethics" is a phrase in search of a joke. The recent decision of Sen. Larry Craig (R-ID) to remain in the Senate despite a recent decision of a Minnesota judge upholding his misdemeanor guilty plea (see the Hennepin court's website for the ruling), now appears to have shifted the controversy over his arrest in an airport restroom to the Senate Ethics Committee. Why? The short answer is that the embarrassed Republican leadership has referred the case to the ethics committee, the only Senate committee with equal representation from the majority and minority parties. (The Democratic majority, which sees more hypocrisy than high crime in the matter, appears to be giving the Senate majority enough rope to perhaps hang itself).

The long answer has to do with the Constitutional powers of the Congress to discipline its members and how they have evolved over the years. At first blush, the case hardly looks like a ethics matter--indeed the Senate Ethics Code <http://ethics.senate.gov> has great detail on financial disclosure, gifts, travel reimbursements, honoraria, outside employment, conflicting interests, post employment restrictions, campaign activities, and mass mailings but nothing on misdemeanor disorderly conduct. However, the Senate has long taken the view that its power to discipline is more expansive than the ethics code, and that it is only limited by Article I, Section 5 of the U.S. Constitution states in part that: "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."

In proposing a permanent standing committee on ethics in the Senate, Senator John Sherman Cooper (R-KY) noted that the new Select Committee on Ethics was intended ‘‘to be free to investigate anything which, in its judgment, seemed worthy, deserving, and requiring investigation’’ 34 and ‘‘would not be limited to alleged violations of Senate rules, but it would take into account all improper conduct of any kind whatsoever.’’ 34 110 Cong. Rec. 16,933, (1964) cited in Senate Ethics Manual, Select Committee on Ethics, United States Senate, 108th Congress, 1st Session (2003 Edition) (Supersedes All Prior Editions) 13.

Just as Sen. Cooper drew on the example of the Senate's censure of Sen. Joe McCarthy (R-MN) in fashioning the committee's broad powers, the Craig matter may strike an important precedent, no matter how trivial the case looks now. If the Senate ethics committee is used merely as a political tool for forcing out members who embarrass their party, it seriously diminishes its role as a quasi-juridical and nonpartisan body that seeks to restore the public's faith in Congress as an institution. Especially when its message is that heterosexual sexual misdemeanors (like Sen. David Vitter's (R-LA) self-admitted use of prostitutes) are acceptable, but homosexual sexual misdemeanors are not...