Table Of ContentS. Hrg. 103-142
RECOMMENDING REVISIONS TO THE PROCEDURES
OF THE SENATE SELECT COMMITTEE ON ETHICS
Y 4. ET 3/4; S. HRG. 103-142
Reconneftding Revisions to the Proce
BEFORE THE
SENATE ETHICS STUDY COMMISSION
ONE HUNDRED THIRD CONGRESS
FIRST SESSION
RECOMMENDING REVISIONS TO THE PROCEDURES OF THE SENATE
SELECT COMMITTEE ON ETHICS
MAY
20, 1993
JUNE 8 and 17, 1993
Printed for the use of the Senate Ethics Study Comnlission
OCT
5 1993
i
S. Hrg. 103-142
RECOMMENDING REVISIONS TO THE PROCEDURES
OF THE SENATE SELECT COMMIHEE ON ETHICS
HEARINGS
HELD BEFORE THE
SENATE ETHICS STUDY COMMISSION
SENATE
U.S.
ONE HUNDRED THIRD CONGRESS
HRST SESSION
ON
RECOMMENDING REVISIONS TO THE PROCEDURES OF THE SENATE
SELECT COMMITTEE ON ETHICS
MAY
20, 1993
JUNE 8 and 17, 1993
Printed for the use of the Senate Ethics Study Commission
V.8. GOVERNMENT PRINTING OFFICE
70-898^ WASHINGTON : 1993
ForsalebytheU.S.GovernmentPrintingOffice
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ISBN 0-16-041317-6
SENATE ETHICS STUDY COMMISSION
[Authorized by S. Res. Ill, 103d Congress]
RICHARD H. BRYAN, ofNevada, Chairman.
THOMAS DASCHLE, ofSouth Dakota. MITCH McCONNELL, ofKentucky.
BARBARA MIKULSKI, ofMaryland. LARRY E. CRAIG, ofIdaho.
DAVID PRYOR, ofArkansas. TRENT LOTT, ofMississippi.
TERRY SANFORD, former Senator from NANCY KASSEBAUM, ofKansas.
North Carolina. BOB SMITH, ofNew Hampshire.
STAFF
Opal Winebrenner, LegislativeAssistantforSenatorBryan
Jean Marie Neal, Administrative AssistantforSenatorBryan
Jack Maskell, CRS, Legislative Attorney
Michael Davidson, Senate Legal Counsel
Morgan Freeman, Assistant Senate Legal Counsel
Victor Baird, StaffDirectorand ChiefCounsel, Senate Select Committee on Ethics
'Appointedon May 19, 1993to replaceSenatorTedStevensofAlaska, who resignedon May
19, 1993.
(n)
CONTENTS
May 20, 1993
OPENING STATEMENT
Hon. Richard H. Bryan, Senator from Nevada, and chairman. Senate Ethics
Study Commission 1
WITNESSES
Robert S. Bennett, partner, Skadden, Arps, Slate, Meagher, and Flom, and
formerSpecial Counsel tothe SenateSelectCommittee on Ethics 4
Submitted copy ofS. Res. Ill, 103d Congress 9
Prepared statement 14
John D. Saxon, partner. Cooper, Mitch, Crawford, Kuykendall, and Whatley,
and formerstafflegal counsel totheSenate SelectCommitteeon Ethics... 77
Prepared statement 82
James Hamilton, member, Swidler and Berlin, and former defense counsel
before the SenateSelectCommittee on Ethics Ill
Prepared statement 115
June 8, 1993
OPENING STATEMENT
Hon. Richard H. Bryem, Senator from Nevada, and chairman, Senate Ethics
StudyCommission 153
WITNESSES
Hon. Warren Rudman, partner, Paul, Weiss, Rifkind, Wharton, and Garrison,
and a former Senator from New Hampshire, and former chair and
memberofthe Senate SelectCommitteeon Ethics 154
Prepared statement 160
Dennis F. Thompson, Alfred North Whitehead Professor of Political Philoso-
phy, Harvard University 187
Prepared statement 191
Norman J. Omstein, resident scholar, American Enterprise Institute for
Public Policy Research 210
Prepared statement 215
(HI)
June 17. 1993
OPENING STATEMENT
Page
Hon. Richard H. Bryan, Senator from Nevada, and chairman. Senate Ethics
StudyCommission 227
WITNESSES
Hon. Howell Heflin, a Senator from Alabama, and former chair and member
ofthe Senate SelectCommitteeon Ethics 227
Hon. Malcolm Wallop, a Senator from Wyoming, and former chair and
memberofthe Senate SelectCommittee on Ethics 232
David M. Mason, U.S. Congressional Assessment Project, The Heritage Foun-
dation 241
Preparedstatement 245
Ann McBride, SeniorVice President, Common Cause 253
Preparedstatement 256
(IV)
RECOMMENDING REVISIONS TO THE PROCE-
DURES OF THE SENATE SELECT COMMITTEE
ON ETHICS
THURSDAY, MAY 20, 1993
United States Senate,
Senate Ethics Study Commission,
Washington, DC.
The meeting convened at 2:10 p.m. in Room 406 of the Dirksen
Senate Office Building, the Honorable Richard H. Bryan presiding.
Present: Senators Bryan, Stevens, Lott, Smith, McConnell, Pryor,
Kassebaum, Daschle and Mikulski.
OPENING STATEMENT OF HON. RICHARD H. BRYAN, A U.S.
SENATOR FROM THE STATE OF NEVADA
Chairman Bryan. Let me take this opportunity to first welcome
my colleagues and our witnesses to this hearing this afternoon.
The Senate Ethics Study Commission was established by the Ma-
jority and Minority Leaders with the specific charge to examine
the disciplinary procedures used by the Senate Ethics Committee
in reviewing questions of ethical misconduct involving members of
the United States Senate. Our focus is process, not the establish-
ment of new ethical standards, that is, how the Senate Ethics Com-
mittee investigates and adjudicates those matters which are
brought before it.
TWs is not the first occasion for the Senate to conduct such an
examination. In 1964, in the wake of the Bobby Baker investiga-
tion, and again in 1977, the Senate reviewed its procedures for han-
dling questions involving ethical conduct. And more recently, in
1981, the Senate Ethics Committee held hearings to examine its
procedures.
Central to our examination of the process is the role of the
Senate Ethics Committee itself. In my judgment, our overriding
duty must be to ensure the integrity of the institution of the
Senate, to assure the public that all of those who serve in the
United States Senate reflect the highest standards of ethical con-
duct Americans have come to exp>ect oftheir elected officials.
It is a duty that must be discharged with great care, because the
existence of public confidence in our institutions of government is
the essential foundation of our political democracy. Senators and
staff who come before the Ethics Committee are entitled to be
treated with fairness, but the commitment to fairness must not be
allowed to foster a system whose primary purpose is helping a sen-
ator or a staff member out of trouble, if a violation has occurred.
(1)
The recommendations the Ethics Study Commission makes to the
Senate Leadership must enhance public trust and confidence in the
Senate itself.
The Ethics Study Commission wall be considering a number of
procedural changes to the Senate's ethics rules. Among them is the
thoughtful proposal made by former Senator Warren Rudman to
bifurcate the fact finding and adjudicatory phases of Senate Ethics
investigations. The current procedure is convoluted. It can be sim-
plified to enable the Ethics Committee to make its findings in a
shorter period oftime, and to do so without compromising the thor-
oughness ofany inquiry.
I want to seriously explore the possibility of having people who
are not members ofthe Senate serve on the Senate Ethics Commit-
tee, or in some advisory role. As a former governor, I have seen
first hand that private citizens can serve effectively as full voting
members of licensing boards and regulatory boards at the state
level; boards which have the licensing and the revocation functions
ofsome ofthe most critical disciplines licensed at the state govern-
ment level.
Clearly, people who are familiar with public life, who have
served on public boards and panels, who have served their commu-
nities, ought to be capable of participating in the judgment of our
behavior.
At the request ofsome members ofthe Ethics Study Commission,
we will wrestle with the issue of whether or not to recommend a
statute of limitations, on ethics charges brought against senators.
The House adopted a six-year statute of limitations, with an escape
proviso, to allow for the consideration of evidence beyond the six
years, when the charges against a member involve a pattern of
misconduct.
The Senate does not have such a statute of limitations, instead
the Senate Ethics Committee evaluates all of the evidence avail-
able as to its credibility. That policy, in my judgment, has served
the Senate well.
I believe strongly that senators assume a public trust the day
they take the oath of office, and that the public has the right to
expect that they will be held accountable during the entire dura-
tion oftheir service in office.
A part ofthe function ofthe Ethics Study Commission is to make
recommendations to strengthen the public's confidence that our
ethics process really works. We do not further that objective by ar-
bitrarily creating a technicality which would limit the ability of
the Ethics Committee to investigate and hold senators accountable
for their conduct during their entire term ofoffice.
The Ethics Committee should, of course, be governed by good
sense and take into account the passage of time, the nature of the
alleged transgression, the quality of the evidence, and other rele-
vant considerations. And may, in a given case, conclude that an al-
leged incident should not be acted upon.
Should the Senate reject the call for a statute of limitations, we
will not undermine the rights of any senators in the event that a
senator faces proceedings separate and apart from the Ethics inves-
tigation, as that senator would still be entitled to all of the rights
accorded to any private citizen.
In recent years, the Senate Ethics Committee, upon determining
that a violation has occurred, has chosen a variety of words in rec-
ommending sanctions that the member faces: reprimand, rebuke,
denouncement. Debating subtle nuances of language and frequent
consultation with a dictionary or thesaurus have not been useful
exercises; we need to standardize penalties and sanctions.
We are here today to receive the counsel of those who have been
directly involved in Ethics Committee proceedings in the past.
These are individuals who have unique experiences working within
the Senate's disciplinary process. Each of them has played a differ-
ent role, and has observed that process from a different vantage
point.
We have asked each to be as specific as possible in telling us
what worked and what did not work, and what they think should
be changed.
Our three witnesses for today's hearing are Mr. Bob Bennett,
who served as special counsel to the Senate Select Committee on
Ehtics on three cases. Mr. Bennett is a partner in the Washington,
DC, law firm ofSkadden, Arps, Slate, Meagher, and Flom.
Mr. John Saxon, who served as legal counsel to the Senate Ethics
Committee under the chairmanship of Senator Howell Heflin. Mr.
Saxon is partner in the Birmingham, Alabama, law firm of Cooper,
Mitch, Crawford, Kuykendall & Whatley, and has spoken and writ-
ten extensively on legislative ethics.
Mr. James Hamilton, who has served as defense counsel to three
senators in their cases before the Senate Ethics Committee. Mr.
Hamilton is currently a member of the Washington, DC, law firm
of Swidler & Berlin. He also has written extensively on the con-
gressional investigatory process.
I should like to remind both my colleagues and the witnesses
that our discussion today obviously can make no reference concern-
ing any pending matters before the Senate Ethics Committee.
I have asked each of the witnesses to confine their testimony to
15 minutes, so that each member of the panel will have an oppor-
tunity to question them. We will use a timing light for that pur-
pose, and after each of you has had a chance to testify, we will
have our round ofquestions.
Let me now defer to Senator McConnell for any opening state-
ments that he may care to make.
Senator McConnell. Thank you, Mr. Chairman. I really do not
have an opening statement. I am quite anxious to hear from our
witnesses and I will not delay the process by making an opening
statement.
Chairman Bryan. Thank you very much. Senator McConnell.
Senator Stevens? I'm calling on members as they arrived in order.
Senator Stevens?
Senator Stevens. I am pleased to have the opportunity to listen
to these witnesses and I look forward to hearing their response to
the statements you havejust made.
Thank
you.
Chairman Bryan. Senator Lott?
Senator Lott. Thank you, Mr. Chairman.
I have no statement. I do want to welcome this distinguished
panel. I know from personal experience with at least two of them
that they should be able to offer some really good insight into what
we might do to improve the process. And I know about the third
member's background with this committee.
I commend the chairman and those that brought this panel to-
gether, and I look forward to hearing them.
Chairman Bryan. Thank you very much.
Senator Smith?
Senator Smith. No opening statement, Mr. Chairman.
Chairman Bryan. Senator Pryor?
Senator Pryor. No opening statement. But I do thank our distin-
guished friends for appearing before us today.
Chairman Bryan. Let us hear from our distinguished friends. So
let me ask Mr. Bennett to begin, ifhe will.
STATEMENT OF ROBERT BENNETT, ESQ., WASHINGTON, DC
Mr. Bennett. It is a great privilege for me to testify before you
today about proposals to change the procedures of the Senate
Ethics Committee. I have had the honor, given by you, of serving
as special counsel to the Senate Ethics Committee in the cases of
Senator Harrison Williams, Senator David Durenberger, and the
so-called Keating Five. I have had the opportunity to work closely
with some ofyou during those cases.
Having served as special counsel in these cases, I have become
familiar, of course, with certain procedures. But perhaps, what I
can hopefully most contribute today is the practical experience I
have had in what probably amounts to two years of my life in deal-
ing with these various matters.
Ethics cases present the Ethics Committee and the Senate with a
very unique challenge. Of course, the system must be fair to the
individual senator, but in every ethics case what is at stake ulti-
mately is the integrity of the United States Senate as an institu-
tion.
Therefore, first of all, I would say that the overall objectives and
goals of any procedure you establish must be consistent with the
following three goals.
First, protecting the integrity of the United States Senate. That
is first and most important in myjudgment.
Secondly, providing senators whose conduct is under review, the
fair process to which they are entitled.
And, finally, ensuring that ethics decisions are merit-based, and
not influenced by partisan interests.
Senator Warren Rudman, who served as chairman and then vice
chairman of the Ethics Committee, says that the three phases of
inquiry under the present system, although intended to ensure fair-
ness to an individual senator, have the opposite effect, and I agree
with that.
The present multistep procedures, the preliminary inquiry, the
initial review, and the investigation have had two unintended con-
sequences and unforeseen practical results.
First, there has been undue delay. And, secondly, what Senator
Rudman calls front loading.
In the Durenberger case, for example, the Ethics Comm—ittee
spent a total of 16 and a half months pertaining to his book what
