Question: In light of the recent charges against Rep. Charles Rangel (D-NY) and Maxine Waters (D-CA) I would like to know how does the House Ethics process work? Highland Falls, NY
Answer: The House and Senate have the authority to discipline their Members for ethical violations, under Article I, Section 5, clause 2, of the Constitution, which states:
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
The House or Senate alone determine the fate of one of their own Members; neither needs the concurrence of the other body or the President before acting. The House has often been criticized for not employing its authority to discipline its own Members more often. The counter argument that is often made is that the House should be exceedingly cautious about substituting its own collective judgment for the judgment of the voters who have seen fit to choose a specific individual to represent them in Congress.
When it comes to ethical violations or behavioral misconduct, Members certainly need to be held accountable by their voters who may choose not to return them to office because of their conduct or character – but they also need to be held accountable by their peers in the House of Representatives. Misconduct by Members brings contempt upon the institution in which they serve. The House has the obligation to protect its reputation and integrity.
The reasons for disciplinary measures imposed by the House on one of its Members have been varied. Most often the House has used the ethics process when a Member’s conduct has been found to discredit the House of Representatives, to violate statutory laws, to violate internal congressional rules, to abuse the powers of their office or misuse Member privileges.
In the House the levels of discipline in order of severity are:
- Letter of admonishment or “reproval” sent to the Member by the House Ethics Committee, with no recommendation for further action on the part of the full House.
- Reprimand, delivered via a resolution adopted by majority vote of the House
- Censure, delivered via a resolution adopted by majority vote of the House, and with the additional requirement that the Member stand in the “well” at the front of the House chamber to receive a verbal rebuke from the Speaker of the House and a public reading of the complete censure resolution.
- Expulsion from the House, by a 2/3 vote, removes the Member from the body. As the most severe form of discipline, it has been reserved for cases involving treason, bribery, or violations of criminal law.
The House has also used lesser disciplinary measures, such as monetary fines, loss of seniority, removal from the chairmanship of a committee, and suspension or loss of other privileges.
Expulsions have been rare. In the House, 5 Representatives have been expelled – 3 for treason during the Civil War, and, more recently, two for bribery (Rep. Ozzie Meyers, D-PA) in 1980 and (Rep. James Traficant, D-Ohio) in 2002. In addition, a number of House Members have resigned from Congress rather than face congressional disciplinary measures, thus removing themselves from the authority of the House to act. A complete Historical Summary of Conduct Cases in the House of Representatives can be found under “Historical Documents” on the website of the House Ethics committee [Committee on Standards of Official Conduct].
The House of Representatives has censured 22 Members (including 1 Delegate). Most censures occurred in the 19th century and tended to focus on civility in debate or the occasional act of violence against another Member. Most recently censure has been used more frequently in cases of financial or sexual misconduct.
Reprimands issued by the House have mostly dealt with misuse of campaign funds, misuse of payroll funds, or using one’s office to financially benefit oneself, family, or friends.
The ethics process in the House of Representatives can begin in two ways. Either the House Committee on Standards of Official Conduct (more often referred to as the “House Ethics Committee”) institutes proceedings based on a complaint from a Member of the House, or a case is referred to the Committee from the new Office of Congressional Ethics, created in 2008, which can receive and investigate complaints about a Member’s conduct brought to its attention from someone outside of the Congress. The House of Representatives may also vote to instruct the Ethics Committee to investigate a specific Member.
Most recently, Rep. Charles Rangel (D-NY), referred his own case to the House Ethics Committee and requested an investigation of charges that had been made against him in the press, in order to attempt to clear his name.
The Office of Congressional Ethics is governed by a Board of Directors: 8 individuals, 4 Democrats and 4 Republicans. All are private citizens, and five of the eight are former Members of Congress. The Office of Congressional Ethics is considered to be an independent body and was given the authority to investigate possible ethics violations and to send their findings to the House Ethics Committee with a recommendation on whether the House Ethics Committee should further pursue the case.
The Office of Congressional Ethics (OCE) was controversial at its inception [passing a key procedural hurdle by just one vote in the House] and remains controversial because its creation gave outside groups an entry point into the disciplinary processes of the House, and because the OCE is required to release to the public any referral they make to the House Ethics Committee. Many Members object to this public release. Even if no formal sanction is ultimately taken or even recommended, Members still face the consequences of negative publicity. While some Members see the OCE release as providing the necessary impetus forcing the House Ethics Committee to take a more proactive role in disciplining Members, others see it as an unnecessary intrusion into a process that had long been an internal affair. To find out more about the Office of Congressional Ethics, visit their website.
Whatever action is or is not taken by the OCE, the House Ethics Committee remains the entity with the last word. They are under no obligation to follow the OCE’s advice. Only the Ethics Committee can decide whether the Member conduct in question constitutes an ethics violation and only the Ethics Committee can recommend to the full House whether or not sanctions against the Member should be imposed.
The Ethics Committee has instituted very detailed procedural rules, with multiple stages, to protect fairness in the ethics process, beginning with an investigation and ending with the right of the accused Member to make their case in public and to examine the witnesses and evidence brought against them in an “adjudicatory hearing,” most often called “a trial,” by the media, although it is not commensurate with a trial in the courts.
The Member being charged can accept the preliminary findings and sanctions recommended by the Ethics Committee or he/she can request the matter go to the next stage.
In the House ethics process, the next stage is for the House Ethics Committee to convene an adjudicatory subcommittee, which holds a hearing (often called an “ethics trial” by the press). During the hearing, House Ethics Committee lawyers present the allegations against the Member involved, and that Member has the opportunity to offer a defense. Either side can call witnesses and present documentary and other forms of evidence. The panel has subpoena power, as does the defendant. At the end of the hearing, the adjudicatory panel meets in closed session and decides the outcome. Its recommendations are then sent to the full Ethics Committee for review and a final decision.
The last adjudicatory hearing (or “ethics trial”) was held in 2002 in the case of Rep. Jim Traficant, D-OH. Traficant was ultimately expelled from the House.
To read the complete set of rules used by the Ethics Committee which governs their disciplinary proceedings, click on “Committee Rules” on the Committee’s website.
After the proceedings have been completed, the Committee makes a full report to the House of Representatives, and may recommend a reprimand, censure, or expulsion and further recommend a monetary fine, or stripping the Member of seniority or a loss of other benefits and privileges. The full House can then debate the Committee’s findings, and either accept them, modify them, or reject them.
Even if there is no internal congressional ethics process employed against a Member, all Members of Congress are citizens of the United States, and are subject to prosecution for criminal misconduct or any statutory violation of U.S. laws. They can be investigated and indicted by Federal, State, or local prosecutors, and be subject to the processes of the U.S. courts.
Members of Congress do NOT have “general immunity” from criminal prosecution while they hold office. But, they DO have “limited immunity” from outside prosecution under the “Speech and Debate” clause of the Constitution. Article 1, section 6, clause 1 states:
The Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
According to the American Law Division of the Congressional Research Service, “Contrary to popular myth and misunderstanding, Members of Congress are not constitutionally immune from arrest for traffic violations under this clause.” [see citation below]. “. . . they are immune from criminal or civil proceedings only for their official conduct or activities which are deemed to be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings,” for example protection against libel charges for words spoken in congressional debate.
The Supreme Court, in a 1969 ruling (Powell v. McCormack), stated that “The protection of this clause is not limited to words spoken in debate. Committee reports, resolutions, and the act of voting are equally covered, as are ‘things generally done in a session of the House by one of its members in relation to the business before it.”’
Stated simply, Members cannot be sued for engaging in the process of considering, debating, or voting on proposed legislation.
For a thorough academic study of the House’s authority to discipline its Members, see “Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives,” by Jack Maskell, American Law Division, Congressional Research Service, January 25, 2005. The report is located on the House Rules Committee website.