Senate Select Committee on Ethics: A Brief History of Its Evolution and Jurisdiction
Released: 2019-02-12T00:00:00

Introduction

To ensure that Members of Congress uphold high standards, the U.S. Constitution provides sole authority to establish rules and punish and expel Members to the House of Representatives and the Senate, respectively. Article I, Section 5, clause 2 provides that "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. "

In the 18 th and 19 th centuries, the Senate used its authority to establish ethics rules and to punish individual Members sparingly. Former Senate historian Richard Baker observed that "[f]or nearly two centuries, a simple and informal code of behavior existed. Prevailing norms of general decency served as the chief determinants of proper legislative conduct. " During that time, Congress often dealt with ethics issues "on a case-by-case basis, [and then] only with the most obvious acts of wrongdoing, those clearly 'inconsistent with the trust and duty of a member. '"

Events in the early 1960s, including charges of corruption and influence peddling against Secretary to the Majority Robert G. "Bobby" Baker, prompted the Senate Committee on Rules and Administration, which had jurisdiction over "[m]atters relating to the payment of money out of the contingent fund of the Senate or creating a charge upon the same," to hold hearings on financial and business activities of current and former Members, officers, and employees of the Senate.

This report examines the history and evolution of the Senate Select Committee on Ethics, including the committee's jurisdiction and investigative procedure. It does not deal with changes to criminal law (as defined in Title 18, U .S. Code ), with criminal prosecutions of Members of Congress, or with the specifics of disciplinary cases in the Senate.

Creating a Permanent Ethics Committee

Prior to the 88 th Congress (1963-1964), no standard mechanism existed for discipline of Senators. During the 88 th Congress, the Senate created the first ethics committee, the Select Committee on Standards and Conduct. In the 95 th Congress (1977-1978), the Senate changed the committee's name to the Committee on Ethics.

Select Committee on Standards and Conduct

Ethics reform became more salient in the Senate after Secretary to the Majority Robert G. "Bobby" Baker resigned on October 8, 1963, following allegations that he had misused his official position for personal financial gain. Following Mr. Baker's resignation, the Senate agreed to a resolution (S.Res. 212) to "inquire into the financial and business interests of any officer, employee, or former employee of the Senate." The resolution directed the Committee on Rules and Administration to conduct an investigation into current and former officers' and employees' financial and business interests. The resolution stated,

Resolved , That the Committee on Rules and Administration or any duly authorized subcommittee thereof is authorized and directed to make a study and investigation with respect to any financial or business interests or activities of any officer or employee or former officer or employee of the Senate, for the purpose of ascertaining (1) whether any such interests or activities have involved conflicts of interest or other impropriety, and (2) whether additional laws, rules, or regulations are necessary or desirable for the purpose of prohibiting or restricting any such interests or activities. The Committee shall report to the Senate at the earliest practicable date the results of its study and investigation, together with such recommendation as it may deem desirable.

Pursuant to the S.Res. 212, the Committee on Rules and Administration held a series of hearings to investigate the general business interests and activities of Senate officials and employees. In the report issued following the hearings, the committee recognized that serious allegations had been made against a former employee, and that no specific rules or regulations governed the duties and activities of Members, officers, or employees of the Senate. The committee also concluded that many of Baker's outside activities were in conflict with his official duties and made several recommendations, including adoption of public financial disclosure rules and other guidelines for Senate employees.

Following the investigation into Mr. Baker, additions to the Senate rules—calling for public financial disclosure reports and more controls on staff involvement with Senate campaign funds—were introduced to implement the committee's recommendations.

Additionally, the Committee on Rules and Administration considered the creation of a separate ethics committee. In a committee report on proposed amendments to Senate rules, Senator John Sherman Cooper discussed an amendment he proposed, but which did not pass the committee, to create a select committee on standards and conduct.

I regret that a resolution which I offered was rejected by the majority party representation on the committee. The resolution which I offered would have established a select committee on standards and conduct, composed of six members, three from each of the parties, to be appointed by the President of the Senate. This committee would be authorized to receive complaints of unethical, improper, illegal conduct of members, officers, or employees of the Senate, to make investigation of allegations of such conduct, to propose rules and regulations, to give advisory opinions, and to make recommendations to the Senate regarding disciplinary action if required.

I believe the establishment of such a committee made up of distinguished Members of the Senate would act as a deterrent upon possible violations, and in the exercise of jurisdiction, would have the confidence of the Senate and the public. I do not consider that such a special select committee should be considered as a policing committee, but one which, as I have said, would deter possible violations and deal with them with utmost dispatch and fairness.

On July 1, 1964, Senator B. Everett Jordan filed a resolution (S.Res. 338) to amend the jurisdiction of the Committee on Rules and Administration and allow the committee

to investigate every alleged violation of the rules of the Senate, and to make appropriate findings of fact and conclusions with respect thereto after according to any individual concerned due notice and opportunity for hearing. In any case in which the committee determines that any such violation has occurred, it shall be the duty of the committee to recommend to the Senate appropriate disciplinary action, including reprimand, censure, suspension from office or employment, or expulsion from office or employment.

Consideration of S.Res. 338 began on July 24, 1964. During debate, Senator Cooper proposed an amendment similar to his proposed amendment in the Committee on Rules and Administration. The amendment proposed to remove jurisdiction over ethical issues from the Committee on Rules and Administration and create a permanent, bipartisan Select Committee on Standards and Conduct. In proposing his amendment, Senator Cooper summarized why he thought the Senate should create a select committee instead of granting disciplinary authority to the Committee on Rules and Administration.

First, in the event that an investigation into the affairs of a Member of the Senate or an employee becomes necessary, it is to give assurance that the investigation would be complete and, so far as possible, would be accepted by the Senate and by the public as being complete.

Second—and this is important to all Members and to all employees of the Senate—it is to provide that an investigation, which could touch their rights and their offices as well as their honor, would be conducted by a select committee which by reason of its experience and its judgment, would give assurance that their right and honor would be justly considered.

Senator Cooper's amendment was adopted by a vote of 50 to 33. Subsequently, the Senate agreed to S.Res. 338, as amended, to create a Select Committee on Standards and Conduct and for the first time created a continuing internal disciplinary body.

Members of the Select Committee on Standards and Conduct were first appointed in July 1965, allowing the Committee on Rules and Administration to complete the Baker investigation. In October 1965, the committee elected a chair and vice chair, appointed its first staff, and began developing standards of conduct for the Senate.

Select Committee on Ethics

On March 11, 1975, Senator Adlai Stevenson introduced S.Res. 109 to "establish a temporary select committee to study the Senate committee system." Agreed to in March 1976, the temporary select committee held hearings in July and September. Among items considered was the combination of the Select Committee on Standards and Conduct and the Committee on Rules and Administration. In a letter from Senator Howard Cannon, chair of the Select Committee on Standards, the ethics committee expressed opposition to this idea. In part, the letter read,

The Select Committee on Standards and Conduct took note of the tentative decision of your Committee to recommend the consolidation of this Committee with the Committee on Rules and Administration. While we are mindful of the promised benefit of reducing the number of Committees which Senators must attend, we strongly believe that your decision would fatally damage any usefulness our Committee might have as well as to impugn any system of ethics in the Senate.

By its very nature it is indispensable to an ethics committee of the Congress to be bipartisan in membership, to conduct any worthy investigation without control of its budget by any other committee, to be served by a nonpartisan staff, to advice and counsel with Senators, and to exercise prudent judgment in the conduct of its business. Consolidation of any ethics committee with a more-normal type of committee is likely to destroy all of these characteristics and to overwhelm any ethics identity. Unlike other committees, moreover, the Senate Committee on Standards and Conduct is mandated to directly assist the Senate in the discharge of a Constitutional responsibility.

Subsequently, the temporary select committee recommended that the functions of the Select Committee on Standards and Conduct should be combined with the Committee on Rules and Administration.

While no further action was taken by the 94 th Congress (1975-1976), the issue was readdressed during the 95 th Congress (1977-1978). In a report on S.Res. 4 , a resolution to amend the Senate committee system, the Committee on Rules and Administration rejected the idea of combining the Committee on Standards with the Committee on Rules and Administration and instead recommended establishment of a newly constituted bipartisan ethics committee to demonstrate to the public the "seriousness with which the Senate views congressional conduct."

In February 1977, the Senate agreed to S.Res. 4 and created the permanent Select Committee on Ethics to replace the Select Committee on Standards and Conduct. Initially, membership on the new select committee was limited to six years. In the 96 th Congress (1979-1980), the Senate adopted S.Res. 271 , and removed the six-year service limitation.

Senate Code of Conduct

In the 1940s, public criticism regarding potential conflicts of interest by Members of Congress supplementing their income from speeches and outside activities led to concern over the lack of disclosure of Members' finances. In 1946, Senator Wayne Morse introduced the first public financial disclosure legislation to require annual, public financial disclosure reports by Senators (S.Res. 306). In remarks on the introduction of the resolution, Senator Morse defended Members' right to earn outside income, but believed that the American people were entitled to know about alternate income sources. Commenting on the resolution's purpose, Senator Morse stated,

I may say that my resolution is bottomed upon the very sound philosophical principle enunciated by Plutarch that Caesar's wife must be above suspicion. Likewise, I feel that, so far as the public's evaluation of Members of the Senate is concerned, they must be above suspicion. Hence, I think my resolution which calls for the filing with the Secretary of the Senate of all sources and amounts of senatorial income is in keeping with the public's right to know what influences may possibly be brought to bear upon Members of the Senate in the performance of their legislative duties.

No action was taken on Senator Morse's proposal.

In 1958, Congress established the first Code of Ethics for Government Service (Code of Ethics). Initially proposed in 1951 by Representative Charles Bennett, the Code of Ethics was adopted following a House investigation of presidential chief of staff Sherman Adams, who was alleged to have received gifts from an industrialist being investigated by the Federal Trade Commission. The Code of Ethics for Government Service standards continue to be recognized as ethical guidance in the House and Senate. The Code of Ethics is not legally binding, however, because it was adopted by congressional resolution, not by law.

In October 1965, as one of its first actions, the Select Committee on Standards and Conduct recommended rules of conduct for Members, officers, and employees of the Senate. In March 1968, the Select Committee on Standards and Conduct reported a resolution (S.Res. 266) making four additions to the Standing Rules of the Senate. After several days of debate, the Senate adopted a new code of conduct. The four areas covered by the new code of conduct were (1) outside employment of officers and employees, (2) raising and permissible uses of campaign funds, (3) political fund-raising activities of Senate staff, and (4) annual financial disclosures by senatorial candidates as well as Members, officers, and designated employees of the Senate.

Formal Code of Conduct

Following the Watergate scandal in the Nixon Administration, reforms "such as electoral changes, designed to prevent the recurrence of the Watergate type of offense" were initiated in the executive branch. Subsequently, the Senate began to examine their own activities and behavior. On January 18, 1977, Senate Majority Leader Robert Byrd and Minority Leader Howard Baker jointly introduced S.Res. 36 , to establish a temporary Select Committee on Official Conduct. As part of a larger discussion on raising salaries for all federal employees, Senator Baker expressed his belief that establishing a formal code of conduct was an essential piece of raising government salaries.

The increase in compensation for Members of Congress will, no doubt, be considered and voted upon in the very near future. It is imperative, therefore, that prompt attention be given to questions relating to ethical conduct and financial disclosure.

For this reason, the distinguished majority leader and I have agreed to propose the establishment of an ad hoc committee to study all questions relating to a Senate code of conduct. The committee will have 15 members, including a chairman and vice chairman, of which eight will be of the majority party and seven of the minority party. It will be instructed to study all matters relating to the standards and conduct of Members of the Senate and to make its report and recommendations no later than March 1.

In this manner, Mr. President, I believe that the Senate can proceed to adoption of an equitable code of conduct as quickly as possible and with the benefit of the ad hoc committee's report.

S.Res. 36 was adopted by unanimous consent.

The Select Committee on Official Conduct held hearings in February 1977 and issued a final report on March 10. The Select Committee reported a resolution ( S.Res. 110 ) to amend the Code of Conduct and propose additions to the Standing Rules of the Senate (then numbered XLII to L), which would become the Code of Official Conduct. The proposed rules changes included the first public financial disclosure requirements for Senators and officers and employees of the Senate; limits on gifts, outside earnings, and the use of the frank; and prohibited unofficial office accounts and lame-duck foreign travel. There was also a provision prohibiting discrimination in staff employment.

On April 1, 1977, S.Res. 110 was agreed to and the Select Committee recommendations were adopted.

In 2007, pursuant to the Honest Leadership and Open Government Act, several sections of the Senate Code of Official Conduct were amended. These included placing restrictions on former Senators and senior staff who become federally registered lobbyists; requiring disclosure by Senators and staff of post-employment job negotiations; implementing protections against Senators from influencing hiring decisions based on political affiliation; and amending the Senate gift rules.

Current Code of Official Conduct

The current Senate Code of Official Conduct can be found in Rules 34 through 43 of the Standing Rules of the Senate. Additionally, federal statutes contain numerous provisions which prohibit or restrict certain activities by Members and employees. Discussion of the prohibitions and restrictions pursuant to federal law are included in the Senate Ethics Manual . Table 1 provides a list of Standing Rules of the Senate that are included in the Code of Official Conduct.

Jurisdiction

Pursuant to S.Res. 338 (88 th Congress), the Select Committee on Standards and Conduct was given the authority to (1) investigate allegations of improper conduct which may reflect upon the Senate; (2) investigate violations of laws, rules, and regulations of the Senate relating to the conduct of Members, officers, and employees in their official duties; (3) recommend disciplinary action, when appropriate; and (4) recommend additional Senate rules to insure proper conduct. Following the creation of the Select Committee on Ethics, the Senate adopted S.Res. 110 (95 th Congress) and transferred the jurisdiction of the former Select Committee on Standards and Conduct and made the new committee responsible for enforcing and interpreting the Senate Code of Official Conduct.

Additions to Jurisdiction

Since 1973, several additions have been made to the Select Committee on Ethics' jurisdiction. The additions have included use of the frank, disclosure of intelligence material, acceptance of foreign gifts, administration of public financial disclosure forms, and enforcement of fair employment practices.

Franking Privilege

In 1973, Congress passed legislation ( P.L. 93-191 ) clarifying the proper use of the franking privilege by Members of Congress and authorizing the Select Committee on Standards and Conduct to provide assistance and counsel to Senators and staff on the use of the frank.

Intelligence Information Disclosure

When the Senate Select Committee on Intelligence was created in 1976, the Ethics Committee was given specific jurisdiction to investigate any unauthorized disclosure of intelligence information by a Senator, officer, or employee of the Senate and to report to the Senate on any substantiated allegation.

Acceptance of Foreign Gifts

In August 1977, following the enactment of P.L. 95-105 (FY1978 Foreign Relations Authorization Act), which amended the Foreign Gifts and Decorations Act of 1966, the Select Committee on Ethics was designated the "employing agency" for the Senate and was authorized to issue regulations governing the acceptance by Senators and staff of gifts, trips, and decorations from foreign governments.

Public Financial Disclosure Forms

In August 1979, the Select Committee on Ethics was given responsibility for administering the Senate public financial disclosure requirements contained in the Ethics in Government Act of 1978. Pursuant to amendments in the Ethics Reform Act of 1989, the Ethics Committee was named as the "supervising ethics office" for laws governing gifts to federal employees and gifts by employees to their supervisors.

Fair Employment Practices

In 1991, Title III (Government Employee Rights Act of 1991) of the Civil Rights Act of 1991 established the Senate Office of Fair Employment Practices. The Office of Fair Employment Practices was designed to adjudicate discrimination complaints and gave the Select Committee on Ethics jurisdiction to review, upon request, decisions of the office. In 1995, authority to review discrimination cases was transferred to the Office of Compliance with the passage of the Congressional Accountability Act (CAA). The Ethics Committee continues to have jurisdiction over disciplinary cases that could result from an Office of Compliance investigation under Senate Rule 42.

Insider Trading and Financial Disclosure

On April 4, 2012, the STOCK Act (Stop Trading on Congressional Knowledge Act) was passed to affirm that no exemption exists from "insider trading" laws and regulations for Members of Congress and congressional employees. Pursuant to the act, the Senate Select Committee on Ethics is required to

issue interpretive guidance of the relevant rules of each chamber, including rules on conflicts of interest and gifts, clarifying that a Member of Congress and an employee of Congress may not use nonpublic information derived from such person's position as a Member of Congress or employee of Congress or gained from the performance of such person's official responsibilities as a means for making a private profit.

Pursuant to the STOCK Act, the Select Committee on Ethics has issued two sets of guidance on the implementation of the law. The first, issued on June 15, 2012, provided a summary of STOCK Act requirements for Senate Staff, reminders of periodic transaction and financial disclosure requirements, and disclosure forms. The second, issued on December 4, 2012, provided specific guidance on insider trading restrictions under securities laws and Senate ethics rules.

Current Jurisdiction

Pursuant to changes made since 1977, the Select Committee on Ethics currently has jurisdiction over the following areas:

1. receive complaints and investigate allegations of improper conduct which may reflect upon the Senate, violations of law, violations of the Senate Code of Official Conduct, and violations of rules and regulations of the Senate, relating to the conduct of individuals in the performance of their duties as Members of the Senate, or as officers or employees of the Senate, and to make appropriate findings of fact and conclusions with respect thereto; 2. recommend, when appropriate, disciplinary action against Members and staff; 3. recommend rules or regulations necessary to insure appropriate Senate standards of conduct; 4. report violations of any law to the proper Federal and State authorities; 5. regulate the use of the franking privilege in the Senate; 6. investigate unauthorized disclosures of intelligence information; 7. implement the Senate public financial disclosure requirements of the Ethics in Government Act; 8. regulate the receipt and disposition of gifts from foreign governments received by Members, officers, and employees of the Senate; 9. render advisory opinions on the application of Senate rules and laws to Members, officers, and employees; 10. for complaints filed under the Government Employee Rights Act of 1991 respecting conduct occurring prior to January 23, 1996, review, upon request, any decision of the Senate Office of Fair Employment Practices; 11. develop and implement programs for Members, officers, and employees to educate them about standards of conduct applicable in the performance of their official duties; 12. "conduct ongoing ethics training and awareness programs for Members of the Senate and Senate staff"; and 13. issue an annual report on the number of alleged violations of Senate rules received from any source, including the number raised by a Senator or staff of the committee, and including the number of allegations dismissed or on which the committee took the specific actions.

Procedure

Procedures for the Select Committee on Ethics are established pursuant to S.Res. 338 (88 th Congress), as amended; P.L. 93-191 ; S.Res. 400 (94 th Congress); and 5 U.S.C. Section 7342. The Ethics Committee may initiate an inquiry or investigate allegations brought by Senators, Senate officers, Senate staff, or outside individuals and groups. While the committee does not have formal procedural requirements for filing a complaint, the committee can issue public statements regarding a specific inquiry. If the committee chooses not to issue a public statement, all allegations are treated confidentially and the committee has a practice of neither confirming nor denying that a matter is before the committee. "Upon completion of its investigative process, the Committee may recommend to the Senate or party conference an appropriate sanction for a violation or improper conduct, including, for Senators, censure, expulsion, or party discipline and, for staff members, termination of employment."

In 1977, the Senate agreed to S.Res. 110 , which created the Code of Official Conduct. Title II of S.Res. 110 amended S.Res. 338, the 1964 resolution that created the procedures of the Select Committee on Standards and Conduct, which became the Select Committee on Ethics. The amendments required the Select Committee to receive complaints and investigate alleged violations of the Senate Code of Official Conduct and to publish necessary regulations to implement the code. Title II also required the publishing of advisory opinions in the Congressional Record, if requested by specified individuals.

Appendix A. Membership on the Senate Select Committee on Standards and Conduct, 1965-1976

Created in the 89 th Congress (1965-1966), a total of 14 Senators served on the Senate Select Committee on Standards and Conduct prior to its being disbanded with the creation of the Senate Select Committee on Ethics in the 95 th Congress (1977-1978). Table A-1 provides a list of all Members who served on the Senate Select Committee on Standards and Conduct, their party affiliation, and their state. Majority party Members are listed first.

Appendix B. Membership on the Senate Select Committee on Ethics, 1977-2019

Created in the 95 th Congress (1977-1978), the Senate Select Committee on Ethics has had a total of 57 different members. Table B-1 provides a list of all Members who have served on the Senate Select Committee on Ethics, their party affiliation, and their state. Majority party Members are listed first.