The House bank scandal, the latest to unleash a feeding frenzy on Capitol Hill, has once again shown that Congress is saddled with an unworkable ethics-review process. The investigation, like the one that targeted Sen. Alan Cranston, took far too long, especially to come to a conclusion that satisfied no one. A superficial ethics-panel review of members of Congress who had bounced checks through the bank was broadened only after public and media pressure for full disclosure.
Judging the conduct of its members is problematic for any organization. In an egalitarian body like Congress, where personal influence is the operative mechanism, it is especially difficult to judge friends, party colleagues and powerful leaders who have decades' worth of political chips to play. Inevitably, an ethics investigation that concludes with a slap on the wrist or the charges being dropped is analyzed by the media and groups like Common Cause in terms of power and influence rather than on the merits of the case. In the watchdogs' view, where there is smoke there is fire, and no censure or reprimand is strong enough (as with the case of Cranston's reprimand), and each vindication is a whitewash, highlighting the pervasive and perpetual corruption in government. By this calculus, no member is ever punished enough or is justifiably innocent.
The reality is that the House and Senate have structured the ethics review process as fairly as possible. The two ethics committees are the only truly bipartisan panels in Congress, having equal numbers of Democrats and Republicans, and usually are made up of the most respected members of each house. Unfortunately, in a misguided effort to assuage outside criticism, the ethics committees have bypassed House and Senate counsel and retained outsiders who cannot be held accountable for their performance. Despite the committees' best efforts to make the process fair, the media, interest groups and too often the public see the whole system as a sham.
Any reasonable solution to this dilemma would have to eliminate peer review. Yet locating the responsibility in an outside entity is inadvisable, and most likely unconstitutional, since it is congressional rules that are at issue, not actual law-breaking.
Given these stipulations, there is an alternative: Give each chamber the power to judge the ethics of the other. Members from the state of the accused representative or senator would be excluded, thereby reducing the risk that the prosecutorial process would be used to further members' ambitions.
While the respective roles, rules and responsibilities of the House and Senate are not identical, they are similar enough that ethics committee members could easily acquire an understanding of the other chamber's procedures and norms. After investigating a case, the committee would make a recommendation, which would be considered as a privileged motion on the floor of the same house. The member's own chamber would either ratify the decision of the other house or be put in the public position of defending a different sanction.
This bicameral reform takes advantage of the natural rivalry that exists between the House and Senate. While the Senate is still seen by some as a club, many members of the House see it as elitist, a House of Lords. Some senators, in turn, derisively refer to the House as a partisan mob. While friendship and animosity do develop between members of both houses, the pressures to politically prosecute or show leniency to a colleague would be nowhere near as intense as is the case under the current system.
The most significant benefit of reforming the ethics review process would be in its freeing both the legislators and the public to put their energy and interest into what matters: the unsolved problems on the nation's agenda.