Political corruption has been around for a long time in our country. When it comes to political corruption, Republicans and Democrats are both guilty. The recent conviction of former Republican Gov. Bob McDonnell of Virginia on charges of corruption was no surprise to those who had been following the complicated story. The governor and his family traded government “favors” for gifts and money they received from Johnnie Williams, CEO of Star Scientific. Although the governor tried to stop information gathering by investigators — for instance, he attempted to hold back emails that had been subpoenaed — in the end, he was convicted.
This was just another example of state and local officials who have been charged with and convicted of political corruption during the last four years. In 2011, former Illinois Governor Rod Blagojevich (D) was sentenced to 14 years in prison after he was convicted of 18 counts of corruption, which included trying to sell the Senate seat vacated by Barack Obama when he became President. Also in Illinois (2012), State Rep. Derrick Smith (D) pled guilty to bribery charges. Iowa State Senator Kent Sorenson (R), who had received $73,000 to change his endorsement from Michelle Bachman to Ron Paul during the 2012 Presidential campaign, resigned from office early in 2013 when evidence of his corruption was made public. In 2014, the former mayor of New Orleans, Ray Nagin (D), was convicted of 20 counts of bribery and two California state senators were indicted on corruption charges. Between 2010 and 2014, four New York state legislators and three Pennsylvania state legislators were also convicted of corruption . There have been numerous other state and local officials who have been charged and/or convicted of political corruption over the last four years.
During the same time period — 2010-2014 — how many members of Congress were convicted of corruption? Exactly two. In 2013, Rep. Jesse Jackson, Jr. (D-IL) pled guilty to misuse of campaign funds and was sentenced to 30 months in prison. Also, in 2013, Rep. Rick Renzi (R-AZ) was convicted of 17 counts that included conspiracy, money laundering, extortion, and fraud and was sentenced to 3 years in prison.
Does this small number of convictions mean that our members of Congress have a greater degree of integrity than state and local officials, or could there be something else going on?
One would hope that most, if not all, Congress members are honest, and this may be the case. However, federal legislators also receive a special protection called the “speech or debate” clause. This is a provision in the Constitution (Article 1, Section 6, Clause 1) which states “They [Senators and Representatives] shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.”
This particular clause was put into the Constitution to help balance the executive and legislative branches; the founders wanted to ensure that the president or his agents could not arrest legislators in order to prevent them from voting in any way contrary to the president’s preferences. As such, it is a logical and necessary protection. However, the interpretation of this clause by the Court of Appeals for the D.C. Circuit has had the effect of blocking convictions on corruption charges by preventing investigators from examining the offices, computers, and files of members of Congress.
In 2007, during the investigation of then-Rep. William Jefferson (D-LA), the Court of Appeals for the D.C. Circuit ruled that when the FBI searched his Washington office, they violated the “speech or debate” clause. The three judges stated that agents of the executive branch cannot view privileged legislative materials (i.e. files, emails, etc.) without the legislator’s permission. When the FBI appealed the decision, the Supreme Court declined to hear the case, and the lower court’s decision stood. The Justice Department warned that the decision would undermine corruption probes of Congress by limiting the ability of federal law enforcement to search for evidence and use wiretaps. They also said that they might be forced to give lawmakers notice before searching their homes, vehicles or briefcases.
Although the “speech or debate” decision did not protect Jefferson in the long run (enough other evidence was gathered to convict him), it has been cited in several corruption cases since then. It was used to kill or hamper investigations of Rep. Tom Feeney (R-FL), Rep. John Doolittle (R-CA), Rep. Rick Renzi (R-AZ), and Rep. Peter Visclosky (D-IN). Both Feeney and Doolittle were involved in the Jack Abramoff scandal.
Because of the “speech or debate” decision, the D. C. Circuit Court threw out evidence from Feeney’s statements to the House Ethics Committee and the investigation was dropped. Doolittle challenged a subpoena of records and a search of his home also based on that “speech or debate” decision. Doolittle left Congress, the investigation was dropped, and he became a lobbyist. Visclosky refused to hand over documents citing “speech or debate” concerns. Renzi also cited “speech or debate” concerns when arguing that the government violated his rights by interviewing his staffers without his consent, wiretapping his cell phone, and procuring documents that staffers took from his office. Renzi was the only one of the four who was tried and convicted.
In 2006, when Rep. Jerry Lewis (R-CA) was Chairman of the House Appropriations Committee, the House general counsel’s office used the “speech or debate” clause to challenge a subpoena of a House staff member in a probe of a lobbying firm’s ties to Lewis. In 2013, because of the court’s ruling on the “speech or debate” clause, investigators looking into allegations of child pornography against the chief of staff for Senator Lamar Alexander (R-TN) had to allow the senator the opportunity to claim legislative privilege over the material in his chief of staff’s Senate-owned devices. Senator Lamar declined to do so and released the material to law enforcement.
Leaders of the House of Representatives have been criticized by watchdog groups because of their stance on the “speech or debate” clause. In reference to a House brief in the Renzi case, Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, said that House leaders are “basically saying that if you are a member of Congress, you cannot be wiretapped under any circumstances.”
We don’t really know how much of what most Americans would call “political corruption” is actually taking place in Congress. Because the Supreme Court has continued to reaffirm its ruling that the government has an interest only in preventing direct quid pro quo or its appearance, it makes it harder to pass campaign finance laws that would make it easier to prevent potential corruption and still pass Supreme Court muster. When you tack on the protection of the “speech or debate” clause, it is easy to see why it may be even harder to prosecute and convict members of Congress of corruption.