Volume 36

The Office of Congressional Discipline: Reforming Congressional Misconduct Investigations by Bringing Investigations In-House

by Michael Parola

Congressional misconduct covers a wide variety of activities with varying degrees of legality. On one end is the minor and perfectly legal misconduct of violating the dress code of the chamber. On the other extreme lies insider trading, sexual harassment of staff, and accepting bribes. Currently, Congress rarely han- dles its own affairs when falling on the clearly legal end of the spectrum. In instances of potential criminal misconduct, the branch nearly always defers to the Department of Justice and state prosecutors. However, this presents a series of problems that oftentimes shields members of Congress from accountability for misconduct. The majority of the American public appears to believe that most members of Congress are corrupt. This broad agreement implies that congress is viewed as either more corrupt now than in 2015, or at similar levels to 2015. This diminishes Congress’s standing relative to the other branches by making them appear less legitimate. Members of Congress are protected by the Speech and Debate Clause, which has been interpreted broadly by the Supreme Court to protect a wide variety of conduct and may soon be further expanded by the Court. Beyond just its formal restrictions for questioning “legislative acts or the motivation for actual performance of legislative acts,” the possibility of violating the Speech and Debate Clause makes prosecutions of members much more difficult than they would be otherwise.

As a result, a system for punishing misconduct that is unified entirely within Congress would be preferable. To make this a reality, such a system would require significant changes from current congressional standards. While both chambers do have ethics committees that ostensibly look into allegations of misconduct, these committees are blatantly partisan, cannot take outside referrals, and are wrought with incentives to be as ineffective and light on punishment as possible. Despite the House of Representatives’ recent ethics enforcement successes with the creation of the House Office of Congressional Ethics (OCE), the office has several key deficiencies. It lacks the ability to subpoena records and testimony from members who are under investigation. Enforcement decisions are still left up to the House Ethics Committee, with the OCE merely providing recommendations.

This Note argues for a quasi-independent agency with many key investigatory and punishment powers instead of an advisory office. This Office of Congressional Investigations and Discipline (OCID) would supplant many areas of Federal Criminal and Civil law for members of Congress. OCID would have three key fea- tures (independent investigatory power, independent punishment power, and juris- diction stripping for certain categories of claims) with myriad of benefits that will be discussed in more detail below. Keeping the OCID within Congress gives the agency more flexibility, as it would not be subject to any potential overruling from the judicial branch and would not have to deal with interbranch conflicts with the executive arising from partisan or constitutional disagreements. This flexibility allows the agency to be nimbler, responding to concerns that arise with much less rigidity than the other two branches would be capable of. Finally, an independent agency that Congress has authority over creates political costs for protecting other members of Congress from misconduct that do not exist under the current system. Along the way, this Note will discuss the intersection between these issues and Legal Ethics. Nearly a third of all members of Congress have J.D.s, and the vast

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