Collins indictment could spur reform

(Editor’s note: This article originally appeared in Legislative Procedure on August 17, 2018.)

After Representative Chris Collins’ (R-N.Y.) recent indictment for insider trading, Speaker Paul Ryan (R-Wis.) called for “a prompt and thorough investigation by the House Ethics Committee.” But such an investigation poses little danger to Collins given the limited time left in the 115thCongress, the committee’s glacial pace, and its past practice of closing member investigations once they leave office. Moreover, should there have been an investigation prior to the announcement of the indictment, it is likely that the committee might vote to suspend its work pending the resolution of any criminal charges. In short, the threat to Collins doesn’t come from Congress.

Yet Collins’ staff is a different story, as they likely will be brought before the committee and therefore have to retain counsel to aid them during its proceedings. And unlike Collins, his staffers do not have $1.3 million in campaign committee and leadership PAC funds available to pay their legal fees or otherwise help cushion any financial blows resulting from the investigation. Were Collins to resign before the end of the year, however, the office would be declared “vacant” and run by the House Clerk. This would likely afford staff time to find new jobs. Instead, they could be left with no choice but to incur considerable debt while Collins does not and even continues to receive his paycheck until the end of the year, at which point the congressional inquiry will evaporate.

The New York Times reported that three other members of the health subcommittee on which Collins served also invested in the company in which he is accused of engaging in insider trading. This suggests that there could be a flurry of news reports on members who serve on the board of companies in which they invest, or members who invest in companies overseen by a committee on which they serve.

What’s next? Some will no doubt point fingers at members in both parties. Some might use the controversy to generate support for a proposed member ban on serving on corporate boards. Alternatively, others may draw a connection between the controversy and the effort by some Republicans at the start of the 115thCongress to dismantle the Office of Congressional Ethics (OCE). (Will people remember that a former congressional Democrat who led efforts to undermine OCE now runs the Federal Housing Finance Agency and is under investigation for sexual harassment?)

A few old timers might even say that the controversy reminds them of 2006 when Democrats retook the House on the heels of an unpopular president, the Abramoff lobbying scandal, and the Foley page harassment scandal. It was from those events that the OCE was created in the first place. Perhaps some of the proposals that didn’t make it into the package at the time, such as giving the OCE subpoena authority, will be revived. Yet while a stronger OCE and better ethics rules could be helpful, it is unlikely that such reforms will stop controversies like this from occurring unless members are required set up blind trusts or otherwise divest investments (with the exception of index funds). For what it’s worth, I’d be glad to exchange a pay bump for members in return for helping to remove these ethical conflicts. The former is unpopular with the American people and, I suspect, the latter is unpopular with members. It’s a win-win.

While Collins is a terrible poster child for member autonomy, the Speaker’s efforts to distance Republicans from his apparent bad behavior – and the mis-reports that Ryan pushed Collins off the committee – may strengthen some members’ incentives to further limit the ability of their leaders to punish them for disagreeing with the party on policy matters. For example, adding additional House rules stipulating when members must resign from committees would have the effect of decentralizing that decision-making to the party or the full chamber.

As a final aside, and if you’re looking for something to occupy your time during recess, here’s a video of the 60 Minutes report that prompted Congress in 2012 to pass the anti-insider trading STOCK Act. The legislation (incidentally, it was the only bill signing I’ve ever attended), which was intended to reduce the likelihood of insider trading through a mandated disclosure regime, was massively-scaled back one year later via a legislative sneak attack intended to avoid public attention and congressional scrutiny.