The U.S. Constitution could hardly be clearer about how unethical behavior on the part of members of Congress should be handled.
“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member,” Article 1, Section 5 stipulates.
In other words, it’s up to the House and the Senate to police themselves.
That system’s effectiveness and shortcomings have been on stark display the past few weeks, which have seen three members of the House resign, rather than face the possibility of being kicked out.
Two of them — Eric Swalwell (D-California) and Tony Gonzales (R-Texas) — did so amid allegations of sexual misconduct. The third lawmaker to leave, Rep. Sheila Cherfilus-McCormick (D-Florida), has been criminally charged with diverting $5 million in pandemic-era Federal Emergency Management Agency money to her 2022 campaign.
The scandal involving Gonzales’s acknowledged affair with a congressional aide, who later took her life by setting herself on fire, had been percolating for months, and was being looked at by the House Ethics Committee.
But while Speaker Mike Johnson (R-Louisiana) called upon Gonzales to drop his bid for reelection in what is considered a safe Republican seat, he had initially resisted calls, including some within his party, for the Texas congressman to resign.
“If the accusation of something is going to be the litmus test for someone being able to continue to serve in the House, you’ll have a lot of people would have to resign or be removed or expelled from Congress,” Johnson said in February. “So, I think you’ve got to allow this to play out.”
Johnson and other members of the GOP leadership were also dealing with a tricky political situation: To lose Gonzales would be to further shrink the Republicans’ already thin majority in the House, which stood at 217-212 as of Wednesday.
So the situation with Gonzales was left to simmer. It was not until allegations arose this month against Democrat Swalwell that things dramatically accelerated. The two resigned from the House on the same day, April 14, to preempt what appeared to be a certain move by their colleagues to expel them. And the margin between the two parties in the chamber remained intact.
Cherfilus-McCormick resigned on Tuesday just moments before she was to appear at a House Ethics Committee hearing, which was to weigh her expulsion after its adjudicatory subcommittee last month found more than two dozen counts against her were “proven by clear and convincing evidence.”
But for all the speed with which the final action surrounding her occurred, the investigation had dragged on for two years.
Meanwhile, the Ethics Committee has opened a probe into Rep. Cory Mills (R-Florida), who faces accusations that include violence against an ex-girlfriend. Mills has insisted he will fight the allegations and will not resign.
With scandals piling up, the committee on Monday put out an unusual public and open-ended call for information from victims of sexual misconduct by lawmakers and from others aware of such incidents.
It could be argued that the House ethics process is a model of urgency and efficiency in comparison with the Senate’s.
The House has an independent Office of Congressional Conduct charged with reviewing ethics complaints and referring what it deems valid ones to the Ethics Committee. The Senate has no such review body, which means potential violations are handled — or not — directly by the elected lawmakers who sit on its Ethics Committee.
In 2024, the nonpartisan Campaign Legal Center compared the records of the two houses of Congress over a more than a decade.
While the House’s Office of Congressional Conduct (then known as the Office of Congressional Ethics) found evidence of a violation in 43 percent of the cases it considered, the Senate Ethics Committee did so just 3 percent of the time, the analysis showed. What’s more, the House released the records of its investigations nearly half the time, whereas the Senate issued public reports in fewer than one in 20 cases.
Those statistics, the Campaign Legal Center wrote, “speak volumes about the disparity in accountability between the House and Senate.”
In both houses, the membership of the ethics committees, which were established after a series of scandals in the 1960s, is evenly divided between the parties — the only permanent panels where that is the case. Few lawmakers covet the assignment, given that it has them sitting in judgment of colleagues, who may be friends or political allies.
Inherent too is the idea that lawmakers must be given time and opportunity to defend themselves — hence, the cases before the committee inevitably move far more slowly than many would like. Accused lawmakers can also drag their feet, or even refuse to cooperate at all with the investigations. And if it reaches a point where they resign, the committees lose any jurisdiction over their actions.
There have been times when the ethics accusations have been deemed by both parties to have been weaponized politically. After charges and countercharges against Democratic and Republican leaders roiled Congress in the 1980s and 1990s, the two sides declared an unofficial ethics “truce” that lasted for seven years into the early 2000s.
On occasion, the findings of the ethics panels have not held up well over time. In 1997, on the recommendation of the Ethics Committee, the House voted overwhelmingly to reprimand then-speaker Newt Gingrich for using tax-deductible money for political purposes in connection with a college course he taught. Gingrich also agreed to a $300,000 fine.
But two years later — after Gingrich had left Congress — the Internal Revenue Service found that his actions and those of the organization sponsoring his course had been proper.
The types of scandals that have shaken the House in recent weeks help explain a fresh Gallup Poll that found Americans’ disapproval of Congress has reached 86 percent, up more than 20 percentage points from a year ago and tying past records.
House members are talking anew about changing their ethics procedures, particularly in cases where lawmakers are accused of sexual harassment and assault. But political reality usually turns faster than the procedural gears on Capitol Hill.
Before Swalwell resigned from Congress, the growing scandal forced him to drop his bid for California governor, in a contest where he was assumed to have been a front-runner. Gonzales too dropped out of what had become a hopeless race for reelection.
Which points to another truth. Whatever the framers of the Constitution may have expected of lawmakers when it comes to their capacity to discipline each other, there is a far more effective instrument: the voter.
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