By Donald K. Sherman
November 6, 2018

For nearly two years, Congress and the public have appropriately focused their attention on executive branch ethics.  While the rampant misconduct by Trump administration officials warrants scrutiny and action, Congress shouldn’t get a pass on cleaning its own house. Fortunately, regardless of which party controls the House or Senate, the 116th Congress presents a unique opportunity to improve its ethics regime.   

There are myriad reasons why congressional ethics should be a priority in the next Congress.  The most glaring of these continues to be sexual harassment.  Despite resignations and rhetoric on Capitol Hill in response to the #metoo movement, both chambers have struggled to reconcile their bills to curb sexual harassment by congressional members and staff.  

In addition, in December 2017, the Office of Congressional Compliance (OCC), which adjudicates complaints by congressional staff, rejected requests by the House and Senate ethics committees for documents related to claims of sexual harassment, discrimination, and retaliation. While OCC stated it lacks statutory authority to file ethics complaints with the information it has, Congress, of course, can change the law to expose harassers while protecting the confidentiality of victims.  The American people deserve to know if their elected leaders are harassers and how Congress will prevent harassment in its ranks, but it remains unclear if Congress will follow through before 2019.

Some ethics problems are so obvious that their existence strains credulity.  For example, new Senators and House members must receive ethics training within 60 days of their start date, but not after their reelection.  That means that Patrick Leahy and Don Young, the longest serving members in the Senate and House, likely only had to take ethics training once despite four decades in Congress. Most congressional employees, by contrast, must complete ethics training every year.  It may be unreasonable to require members of Congress to take annual ethics training, but certainly there is a middle ground between once a year and once a career.  

Congress should also consider extending the length of time former members are barred from lobbying on behalf of special interest.  Another simple way to improve congressional ethics would be for the House and Senate ethics committees to publish updated versions of their ethics manuals which were last released in 2008 and 2003 respectively. Finally, next Congress, members would do well to eschew their biennial attack on the Office of Congressional Ethics (OCE), an independent entity created to allow the public to file ethics complaints for review and referral to the House Ethics Committee. OCE has been an important force for accountability, and yet, early in the 115th Congress, an attempt to eliminate OCE was thwarted only after public outcry.  The Senate does not yet have an independent ethics office, but the 116th Congress provides an opportunity for the House to strengthen OCE and for the Senate to follow its lead.

Ethics should be a priority every Congress, but politics are likely to make congressional ethics reform more urgent in the 116th Congress. If Democrats make significant gains this fall, the calculus for them is simple – with power comes responsibility.  Controlling one or both chambers would give Democrats authority to issue subpoenas, convene hearings, and pass ethics bills. But if Democrats actually want to lead on government ethics, they must also meet the high ethical standards they aim to set for the executive branch.  

Republicans would also do well to pursue ethics reforms if they retain power in Congress.  Despite currently controlling the House and the Senate, most congressional Republicans have failed to perform basic oversight of the administration’s ethical failures.  While policing the president’s misconduct can be politically fraught, even modest congressional ethics reforms will allow Republicans in Congress to take some credit for “draining the swamp” by policing themselves.

While the serious ethical misconduct by Trump Administration officials has threatened our democratic systems and the efficacy of our executive branch, it has also diverted attention from the need for congressional ethics reforms.  This Congress, some members have taken steps to improve congressional ethics with limited results, but others members have actively worked to undermine independent ethics oversight and two were recently indicted. There are both strong policy and political reasons why the time is ripe for congressional ethics reform. Most importantly, doing so would help ensure the legislative branch operates more ethically and efficiently for the American people.