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July 29, 2014

The Year in Congressional Ethics | A Question of Ethics

A famous Tacitus quote about government corruption raises a chicken and egg question. One common translation is: “The more corrupt the state, the more numerous the laws.” But it is also sometimes cited as, “The more numerous the laws, the more corrupt the state.”

So, which is it? Does corruption beget laws? Or, do laws beget corruption?

Perhaps both are right. That might explain why, in an era of expanding legislation and regulation, government ethics always seems to be a hot issue. When this column began after the ethics boom of late 2006, government corruption dominated headlines and exit polls. Seven years later, the frenzy over government corruption may have calmed a bit. But, those years have added thousands of new laws and regulations to a sum that was already too large to count. If Tacitus is right, the ever-growing number of laws in this country could mean that government corruption is ever-growing, too, notwithstanding reformists’ efforts to nip around its edges.

A look back at the year in congressional ethics provides no shortage of support for Tacitus. I asked several top practitioners of political law to name the government ethics story of the year, and there are many.

Ken Gross, a former associate general counsel of the Federal Election Commission, now of Skadden, cited Jesse L. Jackson Jr. as the saddest scandal of the year. In October, the former congressman was sentenced to more than two years in prison after pleading guilty to crimes that the judge described as using campaign funds as a “personal piggy bank.” His wife received a one-year sentence for her own role in the scandal. “Rising to the level of congressman and carrying the name of a famous civil rights leader proved to be too much,” Gross said, “ending in an inconceivable crash landing.”

Robert Walker, former chief counsel of the Senate Ethics Committee and now of Wiley Rein, added the Rick Renzi scandal to the year’s list of biggest stories. Over the summer, the former representative was convicted of 17 violations of federal criminal law, including extortion, bribery, insurance fraud, money laundering and racketeering. Three months later, he was sentenced to three years in prison. After the sentencing, prosecutor Mythili Raman said that Renzi “fleeced his own insurance company to fund his run for Congress, and then exploited his position for personal gain.” “Oh, how the — kind of — mighty are fallen,” Walker said.

Walker also cited another story for its significance “from a process point of view” — the confirmation of the Office of Congressional Ethics “as a fixture” in the ethics process. The OCE was created in 2008 to review allegations of misconduct by House employees to determine if they warrant further review by the House Ethics Committee. In the OCE’s early years, its relationship with the House Ethics Committee was not always smooth. Now, said Walker, “the OCE and the House Ethics Committee have arrived at a modus vivendi allowing them to exercise their overlapping — some might still say redundant — investigative authorities.”

Less than 60 years ago, there were no government entities specifically charged with considering allegations of misconduct by House employees. Today there are two.

Stefan Passantino of McKenna Long & Aldridge, who runs the Pay to Play Law Blog, agrees that improved process is the government ethics story of the year. In addition to the “growing acceptance by all of the role the OCE plays in the process,” Passantino cited the “workmanlike resolution of matters by the two ethics committees.”

But another story late in the year may put some of those developments in doubt. Last month, Dan Schwager left his post as chief counsel of the House Ethics Committee. Described by Walker as “an experienced professional and former prosecutor,” Schwager was widely respected in the field. If the lack of major public controversy is one measure of success of his job, Schwager’s two-and-a-half-year tenure was a successful one. His departure, Walker said, “could wind up being quite significant, depending on the direction the committee takes in hiring his successor.”

Indeed, as we look ahead to 2014, the filling of the chief counsel vacancy in the House Ethics Committee will be the story to watch. Yet, regardless who takes the job, government ethics is sure to remain as relevant as ever. Tacitus said so, however you translate him.

Correction: Dec. 11, 11:30 a.m.

A previous version of this article misstated the year of the ethics boom. It was 2006, not 1996.

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