KILL THE ETHICS COMMITTEES

“The Ethics Committee’s performance . . . strongly vindicates the ability of the Senate to police its own,” said its chairman, Mitch McConnell. He was wrong.

“The committee made a mockery of the process,” says Stanley Brand, a former Democratic general counsel to the House. He’s right.

As chairman of the Finance Committee, Packwood ruled over people who would eventually judge him. A longtime moderate, he endorsed radical welfare-reform proposals in order to curry favor with Majority Leader Bob Dole. No wonder Sen. Howell Heftin, a former Ethics chairman, concluded after the case: “It is simply too hard for members . . . to effectively judge one another.”

But the best case against the current ethics process is that there is no consistency to it. Packwood gets the boot while Rep. Gerry Studds, Who had sex with an adolescent page, gets his wrist lapped. Worse, the committee’s probes create systemic corruption. McConnell must barter with Packwood on legislation if he is to effectively represent his constituents, while Packwood’s best friend, Sen. Daniel Patrick Moynihan, must vote on Packwood’s fate; not surprisingly, he was the only Democrat to oppdse open hearings.

Heflin suggests turning over the process to an outside committee of former members. But if the GOP truly wants a revolution in Congress, the party must go one step further — and abolish the two ethics committees. It must let the courts convict and the voters vanquish.

Some, like the dignified Sen. Richard Lugar, have suggested as much. They have James Madison on their side, who wrote two centuries ago in the Federalist Papers: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment. . . . With equal, nay with greater reason, a body of men are unfit to be both iudges and parties at the same time.”

Even those who sympathize with this position usually recoil from its political implications. Why give one’s opponents such campaign fodder? Why take on Washington’s powerful advocacy groups?

The answer to both questions is simple: ethics.

Members of Congress should be treated like everybody else. If they commit bribery or sexual harassment, they can and should be prosecuted in a court of law. If they lower the standards of the institution with dubious, but legal, behavior, they should be exposed by the press and penalized by the public. Since Watergate, public officials receive more media and public scrutiny than any profession; they also face stricter laws.

When the Select Committee or Ethics was formed in 1964, Brand notes, there was no Federal Election Campaign Act, no Ethics in Government Act, no code of conduct for members, and no special section at the Justice Department to target public officials. Now, the ethics process largely duplicates these functions. Meanwhile, corrupt officials can he expelled by a simple majority of their clients — the voters.

These checks work better than most people think. Last Congress, voters booted Rep. Dan Rostenkowski after the press revealed his financial wrongdoing; the courts continue to prosecute him. And only a few months ago, without a word from the Ethics Committee, Rep. Mel Reynolds got thrown in the slammer for statutory rape.

The real obstacle to such reform is persuading the American people that Congress won’t be lowering the threshold of justice if it moves toward abolishing the committees. Hard, but not impossible. As it stands, the Ethics Committee increases public cynicism rather than diminishes it.

With its myriad secrecy oaths and arcane processes, the committee constrains the press and provides artificial cover for members. It placates, without purging. It wastes taxpayers thousands of dollars. And it distracts the majority of decent members from doing their primary job: legislating.

While turning the Ethics Committee over to an outside panel of retired members tries to address this question, there is only one difference between current and retired lawmakers: The former are accountable to the public, while the latter are accountable only to themselves. And an outside panel, even one composed of judges, poses the same danger of vigilantism as an independent prosecutor.

Of course, abolishing the Ethics Committee will not solve every problem. Some crimes will inevitably slip through the cracks (though probably fewer than now). And President Clinton or his successor might just unleash the Justice Department on Newt Gingrich or whatever congressional pol is getting in his way. But the press and independent watchdog groups have generally prevented such witch hunts. And juries — not to mention the voters — stand in the way of politicized prosecutions.

For those who claim the Packwood case obviates the need for change, they should reexamine the evidence. The GOP turned on Packwood not out of a sense of justice but because Packwood turned on them. After Republicans walked the plank on his behalf, voting against open hearings in spite of public opinion, he threatened to derail the GOP revolution with just such proceedings.

To rise out of this ethical morass, Congress should let prosecutors prosecute, the press sniff out scandals, and the voters render a verdict. While some say this would violate the Constitution, which requires Congress to police its own, just the opposite is true. Such a system would allow Congress to finally fulfill its obligations.

Justice was served in the Packwood case. Next time, it’s unlikely we’ll be so lucky.

David Grann is executive editor of The Hill.