This article was updated on March 24, 2022, at 11:20 a.m. ET.
In a Capitol where laws don’t always address every politician’s ethical misdeeds, shame used to be the great check and balance.
But today, shame is merely another opportunity for members of Congress to raise funds and lift profiles.
If America has learned one thing over the last few years of rule- and norm-breaking in Washington, it’s that many of our laws regarding ethics, campaign finance and lawmaker accountability don’t have very many teeth in them. If there’s a second thing, it’s that learning about the lack of accountability has emboldened more politicians to push the limits of what’s acceptable.
“There are a lot of things where we felt like there were laws and there were structures that worked,” Noah Bookbinder, president of watchdog group Citizens for Responsibility and Ethics in Washington, told NBCLX. “It turns out that they only worked because people were willing to go along with them.”
Bookbinder, a former federal prosecutor, pointed out that former president Donald Trump ran not only against Hillary Clinton in 2016 but also against the entire political system. He said that changed the relationship between politicians and the laws designed to hold them accountable.
“We realized a lot of the laws and rules are not very complete. They don't have enforcement mechanisms,” Bookbinder said. “So when you have people who aren't interested in complying, it's really hard to get accountability.”
Below are several examples of recent rules that have been broken — or had their limits tested — with limited repercussions.
Hatch Act violations
The Hatch Act — in the news again after a back-and-forth between the Biden administration and celebrity Senate candidates Dr. Mehmet Oz and Herschel Walker over their roles on the President's Council on Sports, Fitness and Nutrition — limits political activities of federal employees.
The law was designed to ensure federal programs are administered in a nonpartisan fashion.
But between 2018 and 2019, the U.S. Office of Special Counsel (OSC) concluded counselor to the president Kellyanne Conway violated the Hatch Act on repeated occasions by advocating for Republican candidates and disparaging Democratic candidates while speaking in her official capacity during television interviews and on social media.
Other Trump aides were also accused of violations, which Trump's former press secretary Stephanie Grisham said staffers considered a “badge of honor.”
“Not only was there not shame, but there actually seemed to be a sort of glory in breaking the law,” Bookbinder said. “If appealing to people's sense of right or wrong or even appealing to their shame isn't working, then you've got to put some teeth in the law.”
The OSC provided reports about the violations to Conway’s boss, President Donald Trump, who did not appear to discipline Conway. Conway chose not to comment for this story.
Federal Election Commission violations
Even before 2010's Citizens United v. Federal Election Commission spun political fundraising into overdrive, politicians knew penalties for violating campaign finance laws were light. But most don’t face any penalties these days because the commission, typically composed of three conservatives and three liberals, almost never agrees on guilt. And a 3-3 deadlock results in investigations getting thrown out, even when the evidence to suggest impropriety is overwhelming.
In the few instances when the commission agrees on violations, campaign finance fines are typically just paid with other campaign donations, with zero dollars ever coming out of the guilty politician’s pocket.
Bannon ignoring congressional subpoena
Former Trump strategist Steve Bannon — who had already been pardoned by his former boss on charges related to alleged wire fraud and money laundering during his “We Build the Wall” campaign — was indicted again in November 2021 on two new counts of contempt of Congress after refusing to comply with a subpoena related to the Jan. 6 Capitol riots.
Bannon bonded out shortly after his arrest, criticized the Department of Justice and promised to make his case the “misdemeanor from hell” for the Biden Administration. He has continued his radio and streaming shows and has a trial date scheduled for July.
Federal law prohibits any stockholder from a purchase or sale based on inside information, unavailable to the public. But investigations into members of Congress suggest some of D.C.’s most powerful politicians have “strangely good timing” when it comes to their stock trades.
Additionally, the STOCK Act requires all members of Congress and their top staffers to promptly disclose stock transactions. But Congressional ethics investigators found “substantial reason to believe” Rep. Tom Malinowski (D-N.J.) had violated conflict-of-interest laws, and an Insider investigation found dozens of other lawmakers failing to disclose their trades on time.
“Congress is kind of operating [with] a different set of rules,” Insider‘s Washington Bureau Chief Dave Levinthal told NBCLX.
Levinthal said the fine for lawmakers found guilty of failing to disclose millions of dollars in stock trades is typically just $200. In fact, the law is so routinely violated that Democrats and Republicans are actually working together on legislation that might ban members of Congress from owning stock altogether in the future.
“It's not really an incentive to do the right thing,” Levinthal said of the current law..
Could the Protecting Our Democracy Act fix this?
Bookbinder and his watchdog group have touted the Protecting Our Democracy Act as a way to increase accountability in Washington.
The bill, which already passed the Democrat-controlled House, proposes more than a dozen new reforms related to presidential power, checks and balances, transparency, and election integrity and security.
It includes more transparency on the president’s tax returns, the president’s pardon process and president’s communications with the DOJ; more protections for whistleblowers; new bans on using deepfakes in political activities; and support for states and localities that want to transition to ranked-choice voting systems.
The bill was inspired by President Trump, but Bookbinder hopes Republicans embrace the proposal to rein in Democratic presidents, as well.
“In a weird way, partisanship could help because I think there are Republicans in Congress who don't want President Biden to have too much power,” he said.
But so far, the bill has little Republican support in the Senate. It will need 10 GOP Senators, along with every Democrat, to approve its passage before it could become law.
Noah Pransky is NBCLX’s National Political Editor. He covers Washington and state politics for NBCLX, and his investigative work has been honored with national Murrow, Polk, duPont, and Cronkite awards. You can contact him confidentially at firstname.lastname@example.org or on Facebook, Instagram or Twitter.