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Congressional Ethics and Constitutent Advocacy in an Age of Mistrust

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Congressional Ethics and Constitutent Advocacy in an Age of Mistrust Michigan Law Review Volume 95 Issue 1 1996 Congressional Ethics and Constitutent Advocacy in an Age of Mistrust Ronald M. Levin Washington University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Administrative Law Commons, and the Legal Ethics and Professional Responsibility Commons Recommended Citation Ronald M. Levin, Congressional Ethics and Constitutent Advocacy in an Age of Mistrust, 95 MICH. L. REV. 1 (1996). Available at: https://repository.law.umich.edu/mlr/vol95/iss1/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. CONGRESSIONAL ETffiCS AND CONSTITUENT ADVOCACY IN AN AGE OF MISTRUST Ronald M. Levin * TABLE OF CONTENTS I. CONGRESSIONAL ADVOCACY AND LEGISLATIVE ETIIlCS THEORY 6 A. Legislators as Advocates 8 B. The Ethics Enforcement Background 11 II. CONSTITUENT SERVICE 15 A. Description of the Process 16 B. Positive Appraisals of Constituent Service 19 C. Criticisms 21 1. Casework as Reelection Stratagem: The Question of Motives 21 2. Casework as an Unhealthy Political Influence 24 3. Casework as a Flawed Grievance Syste m 27 D. Interi m Conclusions 31 ill. IMPROPER CONTACTS AND UNDUE INFLUENCE 34 A. Ethics Enforcement Cases 35 B. Judicial Case Law 38 1. Formal Proceedings 39 2. Informal Proceedings 43 * Professor of Law, Washington University. B.A. 1972, Yale; J.D. 1975, Univer­ sity of Chicago. - Ed. This article is based on a study prepared by the author as a re­ porter for the Committee on Congressional Process of the Section of Administrative Law and Regulatory Practice of the American Bar Association. Members of that com­ mittee contributed countless valuable insights as the study developed; special thanks for diligent and thoughtful participation should be expressed to Louis Fisher, Ernest Gell­ hom, Patti Goldman, Linda Gustitus, Abner Mikva, Sallyanne Payton, Stephen Ryan, Peter Strauss, Thomas Susman, and the committee chair, Harold Bruff. Also helpful were the research assistance of Edmund C. Baird, ill, and the suggestions of Stuart Banner, Robert Bauer, Kathleen Clark, John Gilmour, Eric Lane, Richard Lazarus, Daniel Lowenstein, Ronald Mann, Thomas Morgan, Roy Sinlon, and Dennis Thomp­ son. Of course, the opinions expressed in this article should be attributed to no one but the author. As an outgrowth of the committee's work, however, the ABA House of Del­ egates endorsed a set of recommended ethics guidelines for congressional constituent service on February 5, 1996. These guidelines are reprinted as an appendix to this article. 1 2 Michig an Law Review [Vol. 95:1 C. Refo rm Propos als an d New Appro aches 48 1. Form al Agency Proceedings an d Other Sensitive Cases 48 2. Indiscrimin ate Advoc acy 52 3. Thre ats of Repris al on Unrelated Matters 54 4. Thre ats in Gener al 57 5. TheOuter Limits of "Undue Influence" Regulation 59 6. Pub li c Disclosure Options 62 Iv. FAVORITISM AND MONEY INFLUENCE IN CONSTITUENT SERVICE 67 A. Background 67 B. The Ke at ing Case 68 C. Rule XL/JI 70 D. Tightening the Rules: Some Norm ative Premises 73 1. TheIm pulse Tow ard Stricter Regulation 73 2. Caution ary Factors: Lessons from the Corruption Case Law 75 3. The Camp aign Fin an ce Refo rm Connection 80 E. Refo rm Propos als an d New Appro aches 84 1. Simultaneity of Camp aign Con tributions an d Intervention 85 2. In tervention on Beh alf of Contributors 92 3. Offi ce Practices 95 4. The Appe ar an ce of Impropriety 97 CONCLUSION 108 APPENDIX 109 Like lawyer-bashing, Congress-bashing seems never to go out of style. As every newspaper reader knows, and as public opinion surveys confinn,1 the public's regard for the legislative branch has been discour­ agingly low for years. One of the incidents that has done most to fuel this mood is the Keating Five affair.2 The Senate Ethics Committee's 1. See, e.g., Janet Hook, Vo ters' Hostility Is Shaping the Business of Congress, 52 CONG. Q. WKLY. REP. 785 (1994); Richard Morin & David S. Broder, Six Out of 10 Disapprove of Way Hill Does Its Job, WASH. POST, July 3, 1994, at Al. The turnover of party control of Congress in 1994 did not dispel the citizens' mistrust. See R.W. Apple Jr., Poll Shows Disenchontment with Politicians and Politics, N.Y. TIMES, Aug. 12, 1995, at Al. 2. See Michael Waldman, The S&L Collapse: The Cost of a Congress fo r Sale, 2 STAN. L. & POLY. REv. 47, 47-48 (1990) (referring to public opinion research indicat­ ing a ten-point decline from 1989 to 1990 in public's assessment of congressional eth­ ics, with Keating Five incident cited in focus groups as a prime factor). October 1996] Congressional Ethics 3 decision in the Keating case, which has been called "the ultimate meta­ phor for political corruption,"3 provides a fitting prologue for this arti­ cle's theme: the ethical dimensions of intervention by members of Con­ gress into administrative agency proceedings. Charles H. Keating, Jr., was the controlling figure in Lincoln Sav­ ings and Loan, a California thrift institution that was under investiga­ tion by officials of the Federa1 Home Loan Bank Board in the mid- 1980s.4 He successfully prevailed on five senators - Alan Cranston, Dennis DeConcini, John Glenn, John McCain, and Donald Riegle - to press Bank Board officials to take his concerns more seriously, or at least to expedite their handling of the Lincoln case. The pressure reached its climax at two meetings held in April 1987 between the five senators and Bank Board officials, including the Board chainnan, Edwin Gray. When regulators disclosed that Lincoln would be the sub­ ject of a criminal investigation, most of the senators curtailed their in­ volvement in the matter. What made the case sensational was that Keating had raised around $1.5 million for the senators' campaigns and political causes. Senator Cranston and his affiliated groups had received most of this money, but all of the other senators, or organizations associated with them, had received $70,000 or more. The country's growing awareness of the costs of bailing out failed savings and loan associations made the events seem all the more scandalous.5 In the fall of 1989, after the press had reported many of the facts about the five senators' interventions, the Ohio Republican Party, Com­ mon Cause, and others filed complaints against the senators with the Senate Ethics Committee. That committee launched preliminary inquir­ ies against the five senators. In February 1991 the Committee an­ nounced that it would take no further formal action against DeConcini, Glenn, Riegle, and McCain, although it criticized them for poor judg­ ment and, in Riegle's and DeConcini's cases, unseemly appearances.6 At the same time the Committee concluded that it had enough evidence 3. For Sale: One U.S. Capitol, ST. PE'I'ERsBURG TlMEs, Mar. 1, 1991, at A24. 4. Except as otherwise specified, all facts in the following account are taken from the Senate Ethics Committee's report on the Keating case. See SENATE SELECT COMM. ON ETHICS, lNvEsTIGATION OF SENATOR ALAN CRANSTON, S. REP. No. 102-223 (1991) [hereinafter KEATING REPORT]. For an engaging account of the pro­ ceedings by the Committee's vice chairman, see WARREN B. RUDMAN, COMBAT: TwELVE YEARS IN THE U.S. SENATE 195-241 (1996). 5. See generally Symposium, Savings & Loan Crisis: Lessons and a Look Ahead, 2 STAN. L. & POLY. REv. 21 (1990) (presenting several perspectives on the crisis, in­ cluding those of Gray and Keating). 6. See KEATINGREPORT, supra note 4, at 17-19. 4 Michigan Law Review [Vol. 95:1 of impropriety by Senator Cranston to warrant further proceedings. When the Committee finally rendered its decision on Cranston in No­ vember of 1991, it stopped short of recommending censure. It devised an unprecedented intermediate sanction: a "reprimand" issued on the Committee's authority but delivered in the presence of the full Senate.7 The Committee explained that Cranston had "engaged in an impermis­ sible pattern of conduct in which fund raising and official activities were substantially linked. "8 The Committee based its decision on no specific acts of misconduct, but rather on "the totality of the • circumstances. "9 Editorial reactions to the Committee's decisions in the Keating case were caustic. The dominant view was that the Committee had been far too lenient.1° Commentators also were troubled by the vagueness of the Committee's explanation.11 The Committee seemed far more ready to acknowledge that congressional intervention in agency proceedings has ethical limits than to specify what they are. Each of the five sena­ tors had depicted his conduct as fundamentally similar to the "constitu­ ent service" that all senators and representatives provide to individuals who have disputes with federal agencies. The Committee's failure to set forth a clear explanation for its actions suggested that it did not know quite how to respond to that claim. · The Committee's decision in 1995 to recommend expulsion in the case of Senator Robert Packwood suggests that a pattern of leniency in congressional ethics adjudication may now be nearing an end. If so, however, the lack of clarity as to the substance of congressional ethics rules can only become more troublesome. Nevertheless, post-Keating proceedings in Congress have made little further progress in defining 7. See Phil Kuntz, Cranston Case Ends on Floor with a Murky Plea Bargain, 49 CONG.
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