A rare bipartisan unity was achieved in the House of Representatives this week. What was it
that brought lawmakers together? A determination to win the war on terror? A plan to secure
our borders? A compromise to save Social Security from bankruptcy?
Nah. Democratic and Republican leaders in the House joined together to protest the search the
FBI made last weekend of the offices of Rep. William Jefferson (D-La), who is under
investigation for allegedly accepting a bribe from a Kentucky businessman. Partisan
differences are set aside when (and apparently only when) the privileges of lawmakers are
One would imagine that in the wake of the Duke Cunningham and Jack Abramoff scandals, the GOP
would be grateful for the attention devoted to Mr. Jefferson, because his case, and that of
Rep. Alan Mollohan (D-WVa), make Democratic denunciations of the "Republican culture of
corruption" seem a case of the pot calling the kettle black.
But one would be wrong. House Speaker Dennis Hastert and Majority Leader John Boehner said the
FBI search violated the Constitution. Hastert demanded the items the FBI took from Mr.
Jefferson's office be returned.
The lawmakers are on specious ground. Article I, Section 6, Paragraph 1 of the Constitution
says 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 the 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."
Rep. Patrick Kennedy (D-R.I.) interpreted this provision expansively when, after crashing his
car into a barrier at 2:45 a.m. earlier this month, he told Capitol police he was on his way to
a vote, even though the session had ended hours before.
But as former federal prosecutor Andrew McCarthy noted: "the privilege against arrest is
limited, and the privilege against being investigated is non-existent."
The Constitution makes it clear lawmakers are not protected from arrest if a felony is
involved, and if accepting a $100,000 bribe isn't a felony, I don't know what is.
Besides being lousy constitutional scholars, the protesting lawmakers are hypocrites. Congress
routinely issues subpoenas for Executive branch documents, and does so without first obtaining
a warrant from a federal judge, as the FBI did in the Jefferson case.
The Supreme Court ruled (in the Nixon Watergate tapes case) that executive privilege doesn't
apply in criminal cases. If the president can't lawfully resist a subpoena, what on earth
gives Congressmen the idea they can?
Many who thought Congress was out of touch now think our august lawmakers consider themselves
above the law.
In a Zogby poll released Tuesday, just 3 percent of Americans described Congress as
trustworthy. This brouhaha will not increase that number.
Reps. Hastert and Boehner have not previously been thought of as stupid men. Why would they
take such a politically damaging, legally specious, stand?
It may depend upon what the FBI was looking for in Rep. Jefferson's office. The FBI already
seems to have him dead to rights on the bribery charge. It has confessions from the
businessman who bribed him, and from a member of Mr. Jefferson's staff. There is a videotape
of the bribery transaction. And the FBI found the bribe money $90,000 in cash wrapped in
tin foil, which was hidden in Mr. Jefferson's refrigerator.
Additional evidence would seem superfluous unless the FBI was looking for accomplices, or
evidence of other crimes. Either could be a reason for beads of sweat to form on Congressional
Mr. Hastert and Mr. Boehner do not deserve to retain their positions, nor does the party they
"lead" deserve to retain its majority. But though changing partisan control of Congress will
shift the beneficiaries of corruption, it is unlikely to reduce its magnitude.
Power corrupts Democrat and Republican alike. Only major systemic reform can restore a
semblance of honesty.
The longer they remain in office, the more likely it is that they are corrupt. So the reform
most necessary is an amendment to the Constitution to limit the tenure of senators and
We must also change our system of campaign finance. As long as our lawmakers must rely on
special interests for the bulk of their campaign funds, they will be corruptible.
Without these reforms, we will continue to have a Congress whether Republican or Democratic that serves itself well, but the people poorly.