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Saving the congressional ethics office isn’t as big a victory as it seems

The fight wasn’t won by norms. It was won by power.

US-GOVERNMENT-CONGRESS Photo credit should read JIM WATSON/AFP/Getty Images

Less than 24 hours after House Republicans met behind closed doors and held an anonymous vote to bring the Office of Congressional Ethics under the thumb of the House Ethics Committee, they backed down — stripping the changes to the office out of the package of House rules that the chamber will vote on later Tuesday.

The reversal is already being hailed as a victory for democratic accountability. Critics of House Republicans are reassured that even in the era of Donald Trump, there are some things the government can’t get away with scot-free.

But the victors might want to pare back their celebrations. This might be a victory, but it’s of a particularly fragile kind. It’s not a win for democratic norms; it’s a win that shows just how much work is going to be needed to defend those norms, once they’re no longer taken for granted and sufficient to defend themselves.

If norms were robust, none of this would have happened to begin with

The Office of Congressional Ethics isn’t above criticism. Members of both parties of Congress had complaints about the trouble they’d had to go through when the office decided to investigate them over possible ethics “violations” that turned out not to be violations at all. Good-government advocates maintain that stripping the office of its independence wasn’t the way to fix that — and it certainly seems like a bad idea on the merits — but it’s totally possible that the House of Representatives could have come up with a reform package that would have gotten bipartisan support and avoided serious backlash.

That isn’t what happened. The House GOP wasn’t willing to go the slower, more transparent route. Instead, it decided to use the House rules package — which is routinely passed on the first day of the new Congress as a matter of course — as a vehicle to overhaul the office. Furthermore, it added those changes on the evening of a federal holiday, in a closed-door meeting, and without a roll call — without any way for the public to know which individual members supported the change.

US-GOVERNMENT-CONGRESS
As opaque as these envelopes in the hand of House Judiciary Committee chair (and champion of Office of Congressional Ethics “reform”) Rep. Bob Goodlatte (R-VA).
Photo credit should read JIM WATSON/AFP/Getty Images

This isn’t how we expect Congress to work. And with good reason: It’s a bad way for Congress to work. It cuts the entire minority party (and up to 49.9999% of the majority party, including that party’s leadership) out of the decision-making process. Sure, there were Democrats who had beef with the Office of Congressional Ethics, but it’s easy to imagine the House majority using the rules package to entrench its own power and gut the minority party — along the lines of what North Carolina Republicans did in a special session in December.

That possibility might seem unlikely, or like undue fearmongering. But the reason it seems implausible is because we assume that members of Congress will conduct themselves with a certain amount of respect, generosity, and decorum. We expect, in other words, that there are norms that restrain House Republicans from their worst instincts.

The rule changes might (theoretically) have been good policy. And the method by which they were passed might have been good politics: As Jeff Blehar pointed out on Twitter, if the House GOP was convinced these reforms needed to be made, it made all the sense in the world to make them in such a way that they would prevent against spurious attacks. But they ripped through the tissue of norms that has traditionally held Congress together.

It’s really hard to talk about norms in the abstract, much less to defend them. And it’s very hard to notice their atrophy. But by this point, it’s readily apparent that norms of behavior in Congress simply don’t have the power to enforce themselves anymore.

First Nail Ceremony
Shot through with holes like so many nails on a board.
Photo By Tom Williams/CQ Roll Call

They can’t be enforced through shame. Members of Congress don’t have enough of a common identity across parties to be wounded by the denunciation of their peers, and in an age in which being a creature of “Washington” is a recipe for a primary challenge, caring enough about the approval of policymakers, the media, or any other “elite” to feel shamed by them isn’t a feature but a bug.

They can’t be enforced through guilt. Guilt requires members of Congress to feel they’ve fallen short of their mission — which requires them to feel their mission is something more than the pursuit and consolidation of their own power.

Without this, norms can’t enforce themselves — and when they can’t enforce themselves, they no longer work. When a norm has to be defended explicitly, in argument, it’s by definition no longer a norm — it’s a behavior that people can choose to observe, or choose not to. By the time breaking a norm is imaginable, the norm has all but died — the rest is just formality.

There was no way to catch the attempt to gut the Office of Congressional Ethics in advance. Once it was considered acceptable, it was a done deal. The only way to prevent it would have been for it not to be considered acceptable at all. That bridge has clearly already been crossed.

The reversal wasn’t a victory for norms. It was a victory for raw power.

Obviously, the death of the norm against eleventh-hour, secret-ballot revamping of independent oversight bodies doesn’t mean the revamping couldn’t be defeated. It just had to be defeated on other grounds: not by appealing to norms, but by appealing to power.

This is actually something that’s been happening for a while, as norms in Washington have gotten violated or ignored more and more often. Norms can’t be defended in their own right, so they’re defended as something that will, ultimately, be in everyone’s best self-interest to observe.

Sometimes this happens as shoe-on-the-other-foot speculation: “What would your opponents be able to do if they had this power?” But we’ve seen (especially with the expansion of executive power under the past two presidents) that this argument simply isn’t all that persuasive. It assumes that your opponents, once they come to power, will feel constrained by the precedent you set — in other words, it assumes they’ll be constrained by norms themselves. That isn’t an assumption either party appears willing to make about the other side.

Obama holding pen
“What if a Republican president did this?” didn’t stop Obama from aggressive use of executive actions. Who knows what President Trump will do?

Alternatively, norms are defended indirectly, as a matter of “optics” — an unnecessarily jargony way to say, “Damn, that looks really bad.” There are two implications of arguments about “optics”:

  1. The public will remember this the next time you’re up for reelection, and will oppose you because of it.
  2. It’s going to be harder to get what you want out of people in Washington, because they will remember this and judge you for it.

Those appear to be the conclusions that House Republicans came to sometime between Monday night and Tuesday morning. Some of them were surprised by the backlash they got from constituents about the rule proposal — implying that they might suffer electorally; others may have been persuaded by the criticism (however mild) of the president-elect.

Of course, “optics” were the whole reason that President-elect Trump — as well as House Majority Leader Kevin McCarthy and (possibly) Speaker Paul Ryan — were critical of the rules change to begin with. Their complaint wasn’t with the substance of the rules but their timing — arguing that reforming the OCE shouldn’t be a bigger “priority” than tax reform or other legislative issues.

From a policy perspective, this makes no sense (unless you believe that House Republicans should have packed legislative changes into the rules package, which is of course an even bigger norm violation). From an optics perspective, it does: To people who aren’t informed enough to understand how House rules packages work, it looks like House Republicans cared more about gutting the OCE than anything else.

Donald Trump doesn’t care about norms. But he understands power — and he understands the relationship between power and optics, because in his world it’s called “marketing.”

He opposed this because he understood that opposing it looked great for him, optically. If the reforms had stayed in the rules package, he could have reinforced, to his fans, his independence from his party; as it was, he got to make his fans think he was bringing the party to heel.

But most politicians — basically every other politician — don’t operate on the same calculus President-elect Trump does. They’re not trying to reinforce their brand; they’re trying to stay in office. And that calculus doesn’t necessarily lead them to as much sensitivity for “optics” — which is to say, the strongest weapon to defend norms as an act of self-interest isn’t much of an argument at all.

What happens when norms don’t have power to defend them?

Here’s the thing about relying on the expectation of public backlash to dissuade politicians from doing something: It has to work every single time. The first time a politician does something despite being warned that the public will reject him for it, and that rejection doesn’t materialize — or it materializes, but not strongly enough or for long enough to drive him from office — he’s free to dismiss any future warning of backlash as so much noise.

This is why it’s often wiser for politicians to stay in office through scandals, even though the “optics” are terrible and the pressure on them to resign is immense. If they don’t resign, they know the voters won’t necessarily fire them; why bother to worry about a backlash that you know might not pan out?

Sen. David Vitter...
Sen. David Vitter (who just left Congress) wasn’t toppled by a prostitution scandal. The optics were terrible, but the voters didn’t care.
Photo By Bill Clark/CQ Roll Call

“Optics” only matter as far as voters care about them, and voters often don’t. Most of the time, when pundits critique the optics of a political news story, savvier people pooh-pooh them: Voters don’t care about optics enough to remember them in November. That is also true of norms — they do not touch people’s lives directly, and therefore are very easy to weather.

It’s hard to imagine that anyone could look at the election of Donald Trump to the presidency of the United States and not conclude that a whole lot of things that theoretically “look bad” — that violate norms, that offend optics, that everyone expects voters to care about — aren’t important enough to get punished by the public. That appears to be the conclusion that House Republicans pushing for the ethics reforms (led by House Judiciary Committee Chair Bob Goodlatte) came to: that no matter how bad the gutting of the OCE might look in January 2017, it wasn’t going to be bad enough to get anyone kicked out of office in November 2018.

Maybe that calculus changed by Tuesday. But it didn’t change because members were convinced that breaking norms would always incur a backlash; it changed because members were convinced that this particular act would be a bad idea. That strategy only works if public backlash is exactly as strong every single time. Members are no longer being constrained by norms; they’re being constrained by explicit shows of power.

That forces the public to be on constant alert. It forces defenders of democratic norms to make common cause (however contingently and temporarily) with people who don’t actually care about norms — people like Donald Trump — in order to win individual battles. And it only works until the very first time it doesn’t.

Andrew Jackson
The original LOLnorms president.
Photo by Kean Collection/Getty Images

When Andrew Jackson decided to ignore the Supreme Court’s rulings that would have prevented him from mass ethnic cleansing of Native Americans, he didn’t actually say that then-Chief Justice John Marshall “has made his decision; now let him enforce it” — but it’s been passed down as an apocryphal story because it’s such a perfect distillation of the impotence of norms in the face of raw power. Norms can’t survive an argument about “why?”; by the time they’re called into question, it’s really a matter of “you and what army?”

With a constituency of members of Congress committed to the maintenance of norms above all, even if they constrain their own power, there would be an answer to “what army?” But such a constituency doesn’t appear to make up a majority of the majority — the famous “Hastert Rule” that has governed Republican-controlled Houses for a quarter-century.

What we saw with the OCE reforms wasn’t the act of a standing army. It was the mustering of a militia. And the belief that the militia will spontaneously organize to punish each breach is all well and good, until it doesn’t.

Is the public really willing to be a standing army? Is it really willing to take on, full time, a defense of norms qua norms — even when that fight will force it to focus on Congress at least as much as on the Trump administration? And will constituents be willing to punish incumbents for breaking norms, even in the service of policies those constituents support? It’s an extremely tall order. But it’s what’s going to be required now that it’s understood that there is no cosmic punishment for breaking a norm; there is only what can be mustered from the outside.