Skip to main content Accessibility help
×
Home

Gradual Institutional Change in Congressional Ethics: Endogenous Pressures toward Third-Party Enforcement

  • Denis Saint-Martin (a1)

Abstract

Ethics reform in Congress is expected to display extensive instability and “cycling.” Members hold conflicting views about ethics, and parties have weak capacities to order their preferences. The trend is for legislators to resist change until a scandal erupts and forces them to act. As a result, ethics reforms in Congress have typically developed through a layering of short-term and piecemeal institutional responses to the scandal of the moment. But the accumulation over time of seemingly small adjustments to the ethics process has been more path-dependent than anticipated in theories of disjointed pluralism. Legislators have had to commit to more open and collaborative forms of self-enforcement because of the feedback effects of ethics rules on Congress and the “tight-coupling” of standards of conduct between the executive and legislative branches of government. With each new scandal and partisan abuse of the process, pressures for a more independent mechanism to enforce ethics rules has grown stronger over time. The more ethics became governed by impersonal rules, the more it undermined Congress's past trajectory of political self-discipline. It is in this changing balance between positive and negative feedback effects that we can locate the mechanism that is gradually transforming ethics self-regulation in Congress into a new form of “co-regulation” with outsiders in the Office of Congressional Ethics (OCE).

Copyright

Corresponding author

References

Hide All

1. William Branigin, “Democrats Take Majority in House; Pelosi Poised to Become Speaker,” The Washington Post, November 8, 2006.

2. Gail R. Chaddock, “First Steps toward Ethics Reform in Congress,” The Christian Science Monitor, December 15, 2006.

3. Amer, Mildred, History of Congressional Ethics Enforcement (Washington, DC: Congressional Research Service, Report RL30764, 2006).

4. Rhodes, Robert M., “Enforcement of Legislative Ethics: Conflict within the Conflict of Interest Laws,” Harvard Journal on Legislation 10 (1973): 373406.

5. Four former House Representatives, one former House Chief Administrative Officer, and one academic.

6. Maskell, Jack and Petersen, Eric R., “Independent” Legislative Commission or Office for Ethics and/or Lobbying (Washington, DC: Congressional Research Service, Report RL 33790, 2008), 14.

7. Eric Lichtblau, “Congressional Ethics Inquiries Drag On, Despite Vows to End Corruption,” The New York Times, October 18, 2009.

8. Ruth Marcus, “A Toothless Ethics Panel,” Herald Tribune, March 5, 2010, A11; Sylvia A. Smith, “Ethics Upgrade Cleaning House,” The Journal Gazatte, October 3, 2010.

9. Brody Mullins,“Leak Offers Rare Peek at Congressional Ethics Probes,” The Wall Street Journal, October 31, 2009.

10. Jordy Yager, “Ethics Panel Has Track Record of Leniency,” The Hill, July 18, 2012.

11. Scott Higham, “Congressional Ethics Committees Protect Legislators, Critics Say,” The Washington Post, October 7, 2012.

12. Susan Crabtree, “Small Office Has Big Job as Monitor of Ethics in the House,” Washington Times, March 19, 2012.

13. Brody Mullins and John F. McKinnon, “House Travel Stipends Probe,” The Wall Street Journal, August 3, 2010.

14. Holman, Craig, Making the Congressional Ethics Process Work: Independent Panel Helps Ethics Committee Build a Track Record (Washington, DC: Public Citizen, 2012), 3.

15. Lewis, Orion and Steinmo, SvendHow Institutions Evolve: Evolutionary Theory and Institutional Change,” Polity 44 (2012): 314–39; Mahoney, James and Thelen, Kathleen (eds). Explaining Institutional Change: Ambiguity, Agency and Power (New York: Cambridge University Press, 2010); Streeck, Wolfgang, Re-forming Capitalism. Institutional Change in the German Political Economy (Oxford: Oxford University Press, 2009.)

16. Gabaldon, Theresa A., “The Self-Regulation of Congressional Ethics,” Administrative Law Review 48 (1996), 3968.

17. Getz, Robert S., Congressional Ethics: The Conflict of Interest Issue (Princeton, NJ: D. Van Nostrand Company, Inc., 1966), 25.

18. Sasser, Jim, “Learning from the Past: The Senate Code of Conduct in Historical Perspective,” Cumberland Law Review 8 (1977): 357–84.

19. Williams, Robert, “Conduct Unbecoming: The Regulation of Legislative Ethics in Britain and the United States,” Parliamentary Affairs 55 (2002): 611–25.

20. Baker, Richard A., “The History of Congressional Ethics,” in Representation and Responsibility. Exploring Legislative Ethics, ed. Jennings, B. and Calaghan, D. (New York: Plenum Press, 1985), 327.

21. United States Congress, Report of the Bipartisan Task Force on Ethics on H.R. 3660 to Amend the Rules of the House of Representatives and the Ethics in Government Act of 1978 to Provide for Government-Wide Ethics Reform, and for Other Purposes (Washington, DC, 1989), 19.

22. United States Congress, Report of the Ethics Reform Task Force on H. Res. 168 Recommending Revisions to the Rules of the House and the Rules of the Committee in Standards of Official Conduct (Washington, DC, 1997), 6.

23. Ibid.

24. Jonathan Weisman, “House Creates New Panel on Ethics,” The Washington Post, March 12, 2008.

25. Thompson, Dennis F., Ethics in Congress (Washington, DC: Brookings, 1995).

26. Patten, Joseph N., “Congressional Ethics: The Fox and the Henhouse,” Politics & Policy 35:2 (2007): 192220.

27. Riker, William, “Implications from the Dis-equilibrium of Majority Rule for the Study of Institutions,” American Political Science Review 74 (1980), 432–37.

28. Ostrom, Elinor, Governing the Commons (New York: Cambridge University Press, 1990), 45.

29. Parker, Glenn R., Self-Policing in Politics: The Political Economy of Reputational Controls on Politicians (Princeton, NJ: Princeton University Press, 2004).

30. Herrick, Rebekah, Fashioning the More Ethical Representative: The Impact of Ethics Reforms in the US House of Representatives (Westport, CT: Praeger Publishers, 2003).

31. Baker, “The History of Congressional Ethics.”

32. Davidson, Roger H., “Socialization and Legislative Ethics,” in Representation and Responsibility. Exploring Legislative Ethics, ed. Jennings, B. and Calaghan, D. (New York: Plenum Press, 1985), 109–28.

33. Elster, Jon, The Cement of Society: A Study in Social Order (New York: Cambridge University Press, 1989), 41.

34. Williams, Robert, Political Scandals in the USA (London: Routledge, 1998).

35. Lawrence Dodd, quoted in Rosenson, Beth A., In the Shadowland of Conduct: Ethics and State Politics (Washington, DC: Georgetown University Press, 2005), back cover.

36. Rosenson, Beth A., In the Shadowland of Conduct: Ethics and State Politics (Washington, DC: Georgetown University Press, 2005).

37. Williams, “Conduct Unbecoming.”

38. Rosenthal, Alan, Drawing the Line: Legislative Ethics in the States (New York: Twentieth Century Fund, 1996).

39. Schickler, Eric, Disjointed Pluralism: Institutional Innovation and the Development of the U.S. Congress (Princeton, NJ: Princeton University Press, 2001), 15.

40. Ibid., 16.

41. Ibid., 255.

42. Pierson, Paul, Politics in Time (Princeton, NJ: Princeton University Press, 2004), 154.

43. Mackenzie, Calvin G., Scandal Proof: Do Ethics Laws Make Government Ethical? (Washington, DC: Brookings, 2002), 52.

44. Schickler, Disjointed Pluralism, 16.

45. Polsby, Nelson, “The Institutionalization of the U.S. House of Representatives,” American Political Science Review 62:1 (1968): 144–68.

46. Weaver, Kent, “Paths and Forks or Chutes and Ladders? Negative and Positive Feedbacks and Policy Regime Change,” Journal of Public Policy 30 (2010): 137–62.

47. Saint-Martin, Denis, “Path Dependence and Self-reinforcing Processes in the Regulation of Ethics in Politics,” International Journal of Public Management 8:2 (2005): 422.

48. Ginsberg, Benjamin and Shefter, Martin, Politics by Other Means. The Declining Importance of Elections in America (New York: Basic Books, 1990).

49. Feldheim, Mary Ann and Wang, XiaoHu, “Ethics and Public Trust: Results from a National Survey,” Public Integrity 4:6 (2003): 6375; Rosenthal, Alan, “The Effects of Legislative Ethics Law,” in Public Ethics and Governance: Standards and Practices in Comparative Perspective, ed. Saint-Martin, Denis and Thompson, Fred (Oxford: Elsevier, 2005), 155–78.

50. DiMaggio, P. J. and Powell, W., “The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields,” American Sociological Review 48:2 (1983): 147–60.

51. Moore, N. Casal and Kerns, P., “State Ethics Commissions,” LegisBrief 14:23 (2006).

52. Roberts, Robert, “History of the Legalization of Executive Branch Ethics Regulation,” Public Integrity 9:4 (2007): 313–32.

53. Baker, “The History of Congressional Ethics,” 24.

54. Bruce Jennings, “The Institutionalization of Ethics in the U.S. Senate,” The Hastings Center Report (February 1981).

55. Straus, Jacob R., House Committee on Ethics: A Brief History of Its Evolution and Jurisdiction (Washington, DC: Congressional Research Service, Report 7-5700, 2011).

56. McFarland, Andrew S., Common Cause: Lobbying in the Public Interest (Chatham, NJ: Chatham House Publishers, Inc., 1984), 185.

57. Zelizer, Julian E., On Capitol Hill (Cambridge, MA: Cambridge University Press, 2004).

58. Clemens, Elisabeth S., The People's Lobby (Chicago, The University of Chicago Press, 1997).

59. Stark, Andrew, Conflict of Interest in American Public Life (Cambridge, MA: Harvard University Press, 2000).

60. Mackenzie, Scandal Proof, 83.

61. Anechiarico, Frank and Jacobs, James B., The Pursuit of Absolute Integrity (Chicago: The University of Chicago Press, 1996), 12.

62. Berry, Jeffrey M., Lobbying for the People: The Political Behavior of Public Interest Groups (Princeton, NJ: Princeton University Press, 1977).

63. Rothenberg, Lawrence S., Linking Citizens to Government: Interest Group Politics at Common Cause (New York: Cambridge University Press, 1992).

64. McCann, Michael W., Taking Reform Seriously: Perspectives on Public Interest Liberalism (Ithaca, NY: Cornell University Press, 1986), 15.

65. McFarland, Common Cause, 69.

66. Mackenzie, Scandal Proof, 34.

67. Malbin, Michael J., “Legislative Ethics,” in Encyclopedia of the American Legislative System, Vol. II (New York: Charles Scribner's Sons, 1994), 1155–70.

68. Katz, Allan, “The Politics of Congressional Ethics,” in The House at Work, ed. Cooper, Joseph and McKenzie, G. Calvin (Austin: University of Texas Press), 97117.

69. Maskell, Jack, Expulsion, Censure, Reprimand and Fine: Legislative Discipline in the House of Representatives (Washington, DC: Congressional Research Service, Report RL31382, 2005).

70. Herrick, Fashioning the More Ethical Representative, 3.

71. Atkinson, Michael M. and Bierling, Gerald, “Politicians, the Public and Political Ethics Worlds Apart,” Canadian Journal of Political Science 38:4 (2005): 1003–28; Saint-Martin, Denis, “The Watergate Effect: Or Why Is the Ethics Bar Constantly Rising?” in Conflict of Interest and Public Life, ed. Trost, Christine and Gash, Alison L. (New York: Cambridge University Press), 3555.

72. McFarland, Common Cause, 69.

73. Ibid., 110.

74. Mann, Thomas E. and Ornstein, Norman, The Broken Branch: How Congress Is Failing America and How to Get It Back on Track (New York: Oxford University Press, 2006), 75.

75. Davis, Lanny, How “Gotcha” Politics Is Destroying America (New York: Palgrave Macmillan, 2007).

76. Ginsberg and Shefter, Politics by Other Means, 1.

77. Doss, Marion T. and Roberts, Robert N., From Watergate to Whitewater: The Public Integrity Wars (Westport, CT: Praeger, 1997).

78. Congressional Quarterly Almanac (Washington, DC: CQ Press, 1988), 38.

79. Common Cause, “An Outside Counsel Is Needed for the DeLay Investigation,” press release, June 2005.

80. Congressional Quarterly Almanac (Washington, DC: CQ Press, 1988), 38.

81. Common Cause, “An Outside Counsel Is Needed,” 2.

82. Congressional Quarterly Almanac (Washington, DC: CQ Press, 1977), 822.

83. Harriger, Katy J., The Special Prosecutor in American Politics, 2nd ed. (Lawrence, KS: University Press of Kansas, 2000).

84. Meredith McGehee, Testimony Before the Special Ethics Task Force (Washington, DC: The Campaign Legal Center, April 19, 2007), 3.

85. David Hoffman, “Bush, Queried on Meese, Urges Probe of Wright,” The Washington Post, May 26, 1988.

86. United States Congress, Report of the Bipartisan Task Force on Ethics, 21.

87. Ibid., 18.

88. “Maybe the committee – as it's currently required to sit as kind of a grand jury and petit jury both – ought to have a different composition, rather than those who issue the statement of alleged violations being the same people who have to judge them. I think it clearly is difficult to expect members who've publicly announced a reason to believe there's a violation to reverse their position at a hearing stage and dismiss charges against a member. Maybe once a report of alleged violations is issued, the committee rules ought to allow the member to respond expeditiously. You know, to deny a member the opportunity to reply quickly can cause serious political injury. It's unfair. Once alleged violations are announced, the committee ought to just immediately release to the member all the evidence that it could have to indicate that that's happened. In my case, for example, the committee has yet to release any witness testimony or documents that it obtained during the investigation” (May 31, 1989).

89. Thompson, Ethics in Congress, 149.

90. Congressional Quarterly Almanac (Washington, DC: CQ Press, 1989), 39.

91. Ibid., 44.

92. Clifford Krauss, “The House Bank: Gingrich Takes No Prisoners in the House's Seas of Gentility,” The New York Times, March 17, 1992.

93. Bowler, Shaun and Karp, Jeffrey A., “Politicians, Scandals, and Trust in Government,” Political behavior 2:3 (2004): 271–87.

94. Congressional Quarterly Almanac (Washington, DC: CQ Press, 1991), 39.

95. Orren, Gary, “Fall from Grace: The Public's Loss of Faith in Government,” in Why People Don't Trust Government, ed. Nye, Joseph S., Zelikow, Philip D., and King, David C. (Cambridge, MA: Harvard University Press, 1997).

96. Mettler, Suzanne B., “Bringing the State Back In to Civic Engagement: Policy Feedback Effects of the G.I. Bill for World War II Veterans,” American Political Science Review 96:2 (2002): 351–65; Soss, Joe and Schram, Sanford F., “A Public Transformed? Welfare Reform as Policy Feedback,” American Political Science Review 101:1 (2007): 111–27.

97. Mettler, Suzanne and Soss, Joe, “The Consequences of Public Policy for Democratic Citizenship: Bridging Policy Studies and Mass Politics,” Perspectives on Politics 2 (March 2004): 5573.

98. Kimball, D. C. and Patterson, S. C., “Living Up to Expectations: Public Attitudes toward Congress,” Journal of Politics 59 (1997): 701–29.

99. Herrick, Rebecca, “Who Will Survive? An Exploration of Factors Contributing to the Removal of Unethical House Members,” American Politics Quarterly 28 (2000): 96109.

100. Behnke, Nathalie, “Public Trust, Path Dependence, and Powerful Interests: A Model for the Emergence of Ethics Measure,” Public Integrity 10:1 (2007–2008): 1136.

101. Mackenzie, Scandal Proof, 112.

102. Dimock, Michael and Jacobson, Gary C., “Checks and Choices: The House Bank Scandal's Impact on Voters in 1992,” The Journal of Politics 57:4 (1995): 1143–59; Hibbing, John R. and Theiss-Morse, Elizabeth, Congress as Public Enemy: Public Attitudes toward American Political Institutions (New York: Cambridge University Press, 1995), 70.

103. United States Congress, Hearing Before the Joint Committee on the Organization of Congress. The Ethics Process, 103rd Cong. (February 25, 1993).

104. United States Congress, Hearing Before the Joint Committee on the Organization of Congress. Open Days for Members and Outside Groups, 103rd Cong. (June 16 and 29, 1993).

105. United States Congress, Hearing Before the Joint Committee on the Organization of Congress. The Ethics Process, 103rd Cong. (February 25, 1993), 21.

106. Ibid., 4.

107. United States Congress, Final Report of the House Members of the Joint Committee on the Organization of Congress (Washington, DC, 1993).

108. Chanley, Virginia A., Rudolph, Thomas J., and Rahn, Wendy M., “The Origins and Consequences of Public Trust in Government,” Public Opinion Quarterly 64 (2000): 239–56.

109. Saint-Martin, “The Watergate Effect.”

110. Chaftez, Josh, “Cleaning House: Congressional Commissioners for Standards,” Yale Law Journal 117 (2007): 165–73.

111. Tolchin, Martin and Tolchin, Susan, Glass Houses: Congressional Ethics and the Politics of Venom (Boulder, CO: Westview Press, 2003).

112. Congressional Quarterly Almanac (Washington, DC: CQ Press, 1995), 122.

113. Congressional Quarterly Almanac (Washington, DC: CQ Press, 1997), 132.

114. United States Congress, Report of the Ethics Reform Task Force on H. Res. 168, 2–3.

115. Thompson, Ethics in Congress, 160.

116. Ibid., 159.

117. Skowronek, Stephen, Building the New American State (New York: Cambridge University Press, 1982).

118. Rosenson, In the Shadowland of Conduct, 118.

119. Carpenter, Daniel, The Forging of Bureaucratic Autonomy (Princeton, NJ: Princeton University Press, 2001).

120. Herrmann, Frederick M., “Bricks without Straw: The Plight of Governmental Ethics Agencies in the United States,” Public Integrity Annual 2 (1997): 1322.

121. Rosenson, In the Shadowland of Conduct, 145.

122. Haas, Peter M., “Epistemic Communities and International Policy Coordination,” International Organization 46:1 (1992): 135.

123. Allison Mitchell, “New Ethics Rules Are Approved, Including a Ban on Outsiders' Complaints,” The New York Times, September 19, 1997.

124. Congressional Quarterly Almanac (Washington, DC: CQ Press, 1997), 132.

125. McCubbins, Mathew D. and Schwartz, Thomas, “Congressional Oversight Overlooked: Police Patrols v. Fire Alarms,” American Journal of Political Science 28:1 (1984): 165–79.

126. McFarland, Common Cause, 111.

127. Congressional Quarterly Almanac (Washington, DC: CQ Press, 1997), 132.

128. Katharine Q. Seeley, “After Months without Ethics Committee, House May Resurrect It This Week,” The New York Times, September 7, 1997.

129. Joel Hefley and Alan B. Mollohan, Letter to House Colleagues from Chair and Co-Chair of the House Ethics Committee, March 11, 2004.

130. Sheryl G. Stolberg, “Job of Ethics Panel Head Is Even More Thankless That Usual These Days,” The New York Times, October 7, 2004.

131. Testimony of Meredith McGehee, Policy Director, Campaign Legal Center. Before the Special Task Force on Ethics, April 19, 2007.

132. Letter from Norman M. Ostrau, Chairman, Florida Commission on Ethics, to Speaker of the House Nancy Pelosi and Minority Leader John Boehner, April 25, 2007.

133. Susan Crabtree, “House GOP Leaders Dodge Questions on the Future of Ethics Office,” The Hill, August 9, 2010.

134. Ron Nixon, “GOP Grants Reprieve to House Ethics Office,” The New York Times, January 21, 2011.

135. Eric Lipton, “Plan to Cut Budget of Ethics Office Fails House Vote,” The New York Times, July 22, 2011.

136. Greif, Avner, Institutions and the Path to the Modern Economy (New York: Cambridge University Press, 2006); North, Douglass C., Institutions, Institutional Change and Economic Performance (New York: Cambridge University Press, 1990).

The author acknowledges funding for this project from the Social Sciences and Humanities Research Council (SSHRC) of Canada and wishes to thank the reviewers and the editors for their useful guidance.

Related content

Powered by UNSILO

Gradual Institutional Change in Congressional Ethics: Endogenous Pressures toward Third-Party Enforcement

  • Denis Saint-Martin (a1)

Metrics

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed.