A Crisis in Ethics

The shocking allegations against Rep. Eric Swalwell point to the institutional failures of Congress to police itself

All too often, the results of clashing incentives when it comes to congressional ethics

It appears that Rep. Eric Swalwell is in deep trouble in his race for California governor. Reporting indicates that the honorable congressman has, at best, propositioned and engaged in sexual relations with his congressional employees, and at worst sexually assaulted them. A member of Congress having sex with someone in their employ is a violation of House rules (XXIII, subsection 18(a)). Sexual assault is a crime, punishable in the federal courts, state courts, and by Congress.

These allegations, reportedly made by at least four women, cover a number of years. With the exception of the widely reported claim that Rep. Swalwell was the target of a honeypot-style approach by a Chinese national in the employ of their spy agency—which, to be clear, resulted in no finding of wrongdoing by him—this conduct appears to have been, if not a well-kept secret, then something that the press had declined to report.

In light of these reports, Rep. Anna Paulina Luna is expected to offer a resolution to expel Swalwell from the House of Representatives. Such a resolution would be privileged and would likely come up for a vote quickly. And it bears noting that he is not alone. There are several other members currently in the news for serious ethical violations—Sheila Cherfilus-McCormick, Tony Gonzales, Cory Mills—and those allegations appear to have significant merit and involve significant misconduct. (There are others, such as Rep. Henry Cuellar, who is still under investigation even with a presidential pardon, although it appears to be going very slowly; we note that Supreme Court dicta says a pardon can be understood as a confession of guilt.)

We would also be remiss not to note that Rep. Swalwell served on the House Intelligence Committee. Members of that committee are appointed by the party leader—at the time, by Rep. Nancy Pelosi—and are entrusted with oversight of the most sensitive national security matters. Having a member in that role who is engaging in behavior that could compromise their independence poses a grave risk not only to national security, but to the committee’s ability to conduct oversight of the intelligence community. House Intelligence was created in the wake of deeply troubling abuses by intelligence agencies directed at domestic political activity as well as abroad. Its legitimacy depends on the integrity and independence of its members.

Swalwell served on the committee from 2015 to 2023. He reportedly severed contact with the Chinese national in 2015, and a House Ethics Committee investigation from 2021 to 2023 found no evidence that he violated House rules, mishandled classified information, or committed criminal wrongdoing. (Oddly, the committee’s determination that Swalwell had done nothing wrong was itself kept secret from the public until Swalwell published it.)

That raises a straightforward question: what did those investigations actually examine? And if they did not uncover Swalwell’s misconduct, how confident should we be in their scope and effectiveness? If evidence of this conduct existed, why was he reappointed to one of the most sensitive committees in Congress? And if it did not, how good were those investigations in the first place?

There is another, more uncomfortable question. Some people are now coming out of the woodwork to say Swalwell spoke with other members about his multiple “relationships.” I wouldn’t trust anything I see on Twitter, and I wonder how anyone would know what was said in a private conversation. And yet, Rep. Matt Gaetz apparently showed nude photos of his “sexual escapades” (ugh) to other lawmakers and enough sources confirmed it for it to be reported on. Staff, of course, would have suspected, if not known about Swalwell, and it’s not surprising that staff in his office are declining to stand by him.

And yet none of this made its way into public reporting until now. (Right wing news media focused on allegations regarding Christine Fang, the alleged Chinese spy, but not on this misconduct.) Did Swalwell have a reputation and legitimate journalists chose not to report it? Were other members of Congress aware and chose not to act? Did leadership know—and if so, what did they do with that information? Clearly the staff who were the targets of his advances knew what was going on, but there is a long history of staff being intimidated, coerced, or otherwise prevented from reporting misconduct.

None of this is new. Members of Congress behaving badly toward their staff has been a persistent feature of the institution. If you read the debates and reports in the lead up to the original Congressional Accountability Act in 1995, you will find example after example of staff being treated as sexual objects, subjected to discriminatory pay practices, and forced to endure plainly abusive working conditions. In the wake of #MeToo, it became clear that the systems Congress had created to address workplace misconduct were not designed to expose it, but to contain it. Settlements were hidden. Processes were opaque. Accountability was limited. The passive voice was used.

Congress responded with the Congressional Accountability Act Enhancement Act of 2019. At the time, we argued that the legislation did not go far enough. We wrote letters, offered detailed critiques, and met with staff to make the case. Among other things, we argued that employees should not be able to contract away their rights through nondisclosure agreements or employment contracts. The statute itself did not fully address that concern. From what I recall, the implementing guidance addressed the NDA issue. But if these allegations are accurate, it appears that NDAs may still have been used to silence those he reportedly assaulted.

One of the principal reasons staff do not speak out is simple: they will be blackballed. We have seen this repeatedly. Staff who come forward find themselves unable to secure future employment in Congress. And because congressional service is often an entry point into other opportunities, speaking out can foreclose a career. If Congress is serious about addressing misconduct, it needs to address that reality. Staff who make credible allegations should be supported in finding employment in other offices so they can continue their public service.

There is also a structural problem with how misconduct is covered. Reporters rely on access. Members of Congress control that access. And when misconduct involves powerful figures, there are strong incentives not to report aggressively—whether to maintain relationships, preserve sources, or avoid being frozen out. We have seen similar dynamics in other contexts, including when members are plainly unable to perform their duties (e.g., Dianne Feinstein). Reporters know, but some do not report, because doing so would cost them access. It is a problem of incentives.

We may soon hear a great deal about “due process.” I expect a great thrumming from the punditariat and those allied with Swalwell in the hopes of saving his job, or those in similar positions hoping to save theirs. Some will analogize ethics proceedings to criminal trials—presumption of innocence, juries, extended timelines. But we should be clear about the distinction. Criminal proceedings can result in the loss of liberty. Ethics proceedings can result, at most, in the loss of a seat in the House of Representatives. It’s not the same. The dangers that arise from a compromised or criminal member of Congress is in the policy they make so long as they can vote and influence policy.

What process is appropriately due in that context?

Historically, there was no House Ethics Committee, or even a Committee on Standards of Official Conduct. These matters could be addressed on the floor, and usually prompted by scandal. (This is assuming that party leadership didn’t deal with it first.) The ability to bring ethics matters directly to the House floor remains one of the few ways to obtain an expeditious resolution in cases of egregious misconduct. There are now efforts to limit the ability of members to offer privileged resolutions to bring such matters forward. See, for example, this proposal by Reps. Don Bacon and Don Beyer. While well intended, those efforts are misguided. They would further entrench a system that already struggles to act.

The House Ethics Committee serves an important function, but as an enforcement mechanism it has significant limitations. Members of Congress are, in effect, judging one another. They have strong incentives to be generous in their interpretations, both to preserve relationships and to ensure that they would receive similar treatment if the roles were reversed. History has shown this is a recipe for undersight, not oversight.

The Office of Congressional Ethics was created to address some of these concerns in the wake of the major failings of the Ethics Committee. It is nonpartisan and staffed with experienced investigators. It lacks subpoena power, however, and members can refuse to cooperate. It should be stronger, but some members keep trying to weaken it, and the Ethics Committee resents its independence. Ultimately, its authorities and incentives are not well matched to the scale of the problem.

All of this is compounded by politics. The House majority is narrow. The loss of even one or two members can shift control of the chamber. That creates a powerful disincentive to act, even in cases where misconduct is clear. The case of Rep. George Santos demonstrated that outcomes can depend as much on political calculations as on the underlying facts. (He was an obvious charlatan, and leadership’s antipathy for him personally expedited matters.)

One final point: The continued presence of members who engage in unethical or unlawful behavior is an institutional failure. Congress’s credibility is not undermined simply because misconduct occurs, but when that misconduct is not addressed. That is where individual misconduct can metastasize to something that threatens the entire body. We’ve seen this cancer spread to the point the Senate undermined the removal process for President Trump after the January 6 insurgency. Now Congress refuses to hold him to account for his manifest corruption. That, too, is an ethics failure—and it is the one that matters most.