Oct. 7, 2009 -- At the very least, Sen. John Ensign, R-Nev., is guilty of bad judgment, and Rep. Charles Rangel, D-N.Y., who chairs the House tax writing committee, is guilty of being bad at doing his own taxes. The jury is out on whether either man broke Congressional ethics rules. And if history is any guide, that jury will be out for a very long time.
In the House of Representatives, an ethics inquiry into Rep. Rangel's failure to declare property and income on his tax filings for years, has dragged on for more than a year. The committee has voted to extend its inquiry and questions about Rangel have expanded to include a rent controlled apartment he used as an office in Harlem, and the diversion of earmarked funds to create a school in his name at the City College of New York.
But while questions about the long-serving Democrat have grown, the House Ethics Committee has toiled in secret.
Democrats are expected to block a Republican attempt to strip Rangel of his chairmanship on Wednesday.
Over in the Senate, Ensign admitted in June to having an affair with a former staffer's wife, paying the couple off with $96,000. The plot thickened last week when the New York Times reported that Ensign may have broken ethics rules when he tried to set the staffer, Doug Hampton, up with a lobbying job.
The Senate Ethics Committee does not comment on ongoing investigations, so it was news Oct. 4 when Sen. Barbara Boxer, D-Calif., who chairs the committee, admitted even that her colleagues were conducting a "preliminary inquiry" into Ensign's activities.
Boxer's confirmation of the preliminary inquiry came more than three months after Ensign admitted to having the affair and resigned his Senate Republican leadership post.
Since admitting to the affair, Ensign has clammed up about his dealings with Hampton. He told CNN Tuesday that he would cooperate with all investigations, but would not comment about them while they were ongoing.
While the Sixth Amendment in the Bill of Rights guarantees American citizens a fair, speedy and public trial when they're accused of criminal wrongdoing, lawmakers like Ensign and Rangel play by a different set of rules when they're accused of breaking ethics rules.
Internal congressional inquiries drag on for months and months, are conducted behind closed doors, and rarely result in any disciplinary action. Senators Kent Conrad, D-N.D., and Chris Dodd, D-Conn., never admitted any wrongdoing over the VIP loans they received from Countrywide Financial and said they hadn't a clue they might have violated Senate gift rules. It took the ethics committee 14 months to agree.
It's a broken system, according to Melanie Sloan, who runs Citizens for Responsibility and Ethics in Washington, which made a formal complaint about Ensign to the Senate Ethics Committee in July. They also asked the Department of Justice and the FBI to investigate whether he broke federal law by paying off Hampton.
"They never actually enforce the ethics rules," she said of the House and Senate ethics committees. "The ethics committees are there for cover."
Sloan pointed to Sen. David Vitter, D-La., as an example. Vitter admitted at a press conference in July 2007 to hiring a prostitute when he was a member of the House of Representatives after his phone number was revealed in the trial of the "D.C. Madam" Deborah Jeane Palfrey.
The Senate ethics committee took 10 months to decide that it would not take action against Vitter because he was not in the Senate when his calls to Palfrey's service took place and that he did not, in soliciting a prostitute, abuse his office as a senator.
The House Committee on Standards of Official Conduct did not investigate Vitter, presumably because he was no longer a member of the House.
But Rep. John Murtha, D-Pa., is still in the House. He has come under fire for steering defense contracts to friends and former staffers. There is also no House ethics investigation of Murtha, who chairs a powerful appropriations subcommittee and whose former staffers are under federal investigation in connection with the lobbying scandal. Government groups from the right and left have called for an inquiry into Murtha.
But the House ethics committee does not accept outside requests for investigation. House members tried to make their ethics process more accountable in 2008 when they created a special committee of non-lawmakers as a sort of grand jury for House ethics issues. Sloan argues that since the committee lacks subpoena power, it is ineffective.
The Senate ethics committee pledges to launch a preliminary inquiry whenever an ethics complaint is lodged. The results of those inquiries are rarely made public and the committee does not publicize complaints.
Sloan would like to see an entirely independent body set up to investigate congressional misconduct.
The Constitution gives the House and Senate the responsibility to police their members.
"Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member," reads Article I of the Constitution.
Both the Senate ethics committee and the House Committee on Standards of Official Conduct are made up of equal numbers of Republicans and Democrats, a bipartisan gesture in a place where the majority usually rules.
Only five House members have ever been expelled, including, most recently, Democratic Rep. James Traficant of Ohio in 2002. He was recently released from five years in prison for corruption.
No senator has been expelled since the Civil War, although several have come close. Most lawmakers in that much trouble resign before they are expelled.
And all this is not cause for alarm, according to Stan Brand, a former House counsel and expert on congressional ethics.
"It is supposed to be a quasi-judicial process and parts of it look like a judicial process," said Brand. "On the other hand, it takes place in a political body and it's subject to the drafts of political influence."
And if the system were not so opaque, ethics investigations could be used as political weapons.
There is a tendency on the part of both committees to give deference to federal and state judicial systems investigating lawmakers, a practice decried by Sloan.
"Not everything that violates House or Senate rules is also a crime," she said. "Our standard for House and Senate members shouldn't be that they avoid indictment."
Indeed, indictment can cause the ethics committees to stand down. Rep. William Jefferson was recently convicted of taking bribes. He was voted out of office in 2008, but the House ethics committee had suspended its investigation of him long before.
The same held true for Rep. Rick Renzi, a Republican accused of corruption. Renzi resigned in 2008.
In the Senate, Ted Stevens, the long-serving Republican from Alaska, was convicted of corruption just before he was narrowly voted out of office in November 2008, without a word from the Senate ethics committee. The conviction has since been voided amid questions of prosecutorial misconduct.
While few members of Congress are expelled or held to account by their ethics committees, Brand said there are many instances of lawmakers being prosecuted by the Department of Justice.
And beyond the legal system, voters have the ability to assign guilt with their votes every two years.
"The ultimate accountability is through the political process," said Brand. "If people think the system has failed, they have the ability to make a decision at the ballot box."