The U.S. Constitution provides, in Article I, that “each House may . . . punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.” But the failure of the Senate Ethics Committee in two recent cases to take appropriately aggressive action against senators who engaged in questionable ethical behavior raises a fundamental issue. Are members of the Senate Ethics Committee capable of judging their own colleagues in a way that reflects the public interest? The answer is no.
The two-year investigation into the so-called Keating Five is about to end with a final ambiguity. The Ethics Committee has agreed to reprimand Alan Cranston, California’s senior senator, but not to issue formal censure or hold a trial for the purpose of expulsion. Evidence had showed that Cranston, who will not run for reelection next year, soaked up nearly $1 million in campaign contributions from Lincoln Savings & Loan owner Charles H. Keating Jr., who prevailed upon the compliant Cranston to intervene with federal banking regulators.
The other questionable outcome came in the committee’s weaselly investigation of Sen. Alfonse D’Amato (R-N.Y.). Even though witness after witness refused to testify, citing Fifth Amendment rights, the panel found no reason to issue any report or take any action in this notorious case involving allegations that D’Amato used his office to funnel government funds to campaign contributors, or to his brother’s law offices.
The question that must now be addressed is whether the Senate Ethics Committee serves any significant public-interest purpose. Since it was founded in 1966, after a bungled Senate probe of the tainted financial affairs of Senate official Bobby Baker, a protege of then-President Lyndon B. Johnson, the panel has failed to serve as a useful disciplinary board. It’s easy to see why. The almost-all-male Senate is more like a fraternity than a representative democratic body. No wonder that it has repeatedly failed to develop and articulate specific standards of ethical behavior. And the panel’s Democratic/Republican division (split 50-50 between the two), while designed to produce elegant bipartisanship, in fact has served to assure only lethal deadlock and compromise.
America requires a more effective mechanism of Senate ethics regulation. One proposal worth pursuing is to replace the increasingly discredited Senate Ethics Committee with a permanent Senate council, perhaps composed of retired judges and prosecutors, rather than sitting senators. Using the same triggering criteria to open an investigation of alleged ethical violations, the special council would organize probes, call witnesses or hold hearings and issue reports. Final disposition would continue to reside, as the Constitution requires, with the full Senate, but it would be required by the council’s report to decide, rather than duck, the question of the guilt of the accused member--and to levy punishment.
The Senate’s endemic structural problem is that its mechanism for redress is fatally flawed by a logical hitch: The members of this exclusive club are incapable of investigating themselves. They must relinquish a measure of power and delegate the job to a more disinterested body.