The Senate Ethics Committee is a terrible place for sexual harassment investigations

The Franken case could set a terrible precedent for future cases.

Then-Senate Ethics Committee Chairman Sen. Mitch McConnell (R-KY)
Then-Senate Ethics Committee Chairman Sen. Mitch McConnell (R-KY), left, at a September 1995 press conference about then-Sen. Bob Packwood (R-OR). CREDIT: AP Photo/John Duricka

Just a few hours after broadcaster Leeann Tweeden accused Sen. Al Franken (D-MN) on Thursday of kissing and groping her without her consent on a 2006 USO tour, Senate Majority Leader Mitch McConnell (R-KY) signaled to his colleagues how the matter should be dealt with: He farmed out the question to the Senate’s Select Committee on Ethics.

“As with all credible allegations of sexual harassment or assault, I believe the Ethics Committee should review the matter. I hope the Democratic Leader will join me on this. Regardless of party, harassment and assault are completely unacceptable — in the workplace or anywhere else,” he said in a statement. Soon after, Senate Democratic Leader Chuck Schumer (D-NY), other senators, and Franken himself followed suit.

While noting that he had a different recollection of the events, Franken apologized for his conduct. Tweeden accepted the apology and said she was not calling for the Minnesota Democrat to resign. And few others made such a demand either, as Democratic colleague after colleague expressed outrage and endorsed an ethics probe.

As numerous victims of sexual harassment and sexual assault continue to come forward and speak out publicly about their experiences, if seems likely that other senators may also face accusations about their own conduct in the future.  And with this preceden, McConnell is signaling that the Ethics Committee will be the place for those questions.

Here’s the problem.  The Select Committee on Ethics is made up of three Senate Democrats and three Senate Republicans, designed to prevent any action that is not supported by at least one member of each party.  It has not been very active in recent years; prior to a statement on Thursday that it would resume its inquiry into the conduct of Sen. Robert Menendez (D-NJ) following an unsuccessful attempt by the U.S. Department of Justice to obtain a conviction on corruption charges, the most recent press release on the committee’s website was from 2014.  The most recent public action by the committee was a 2012 letter of reprimand of then-Sen. Tom Coburn (R-OK) for his role in a scandal involving John Ensign (R-NV), who resigned from the Senate in 2011. At the time of Ensign’s resignation, the ethics committee said it had been investigating him for 22 months and had not yet completed its work.

The last time the Senate ethics committee took serious action against a sitting senator was more than two decades ago.  Days after winning re-election in November 1992, the Washington Post broke the story that Sen. Bob Packwood (R-OR) had “made uninvited sexual advances to women who have worked for him or with him,” including 10 staffers and lobbyists. The matter was sent to the ethics committee. Partisan deadlocks slowed the investigation considerably.

Though ultimately 19 women came forward and Packwood’s own diary contained damning evidence, it was not until nearly three years later — September 1995 — that the committee completed its investigation and unanimously recommended Packwood’s expulsion. The chairman of the committee at that time was McConnell himself. Packwood resigned his seat 24 hour later.

Notably, while McConnell has decided that the ethics committee is the appropriate venue for an investigation into Franken’s actions from two years before his 2008 election to the Senate, he previously has cast doubt on whether the committee even has the power to act on such cases. In 2007, facing questions about then-Sen. David Vitter (R-LA), whose phone number appeared on a client list for a prostitution ring, then-Senate Minority Leader McConnell argued that since Vitter had been in the U.S. House at the time, there was little the Senate could do: “[I]t appears whatever might have occurred, occurred before this individual came to the Senate, therefore raising serious questions as to whether the Senate has jurisdiction over it.”

If a case as obvious as Packwood’s took three years, sending less cut-and-dry cases to ethics could prove to be a black hole, allowing senators to escape any real consequences for their behavior.