At issue, as in all ethics cases, is whether a member “behave[s] at all times in a manner that shall reflect creditably on the House” – the golden rule of the House's Code of Official Conduct.
But the definition of what behavior fails that standard, especially in matters relating to sex, has shifted over time.
Until the 1980s, all but the most notorious sex scandals were viewed as a private matter, between lawmakers and their families or voters. Moreover, a culture of heavy drinking – much less evident today – was widely accepted both in Congress and within the press corps that covered it.
Both then and now, lawmakers have been reluctant to set a standard on sexual behavior that many members could potentially fail – or that could encourage witch hunts.
“It’s a risky standard for members if every time someone engaged in sexually inappropriate conduct, they are going to have to leave Congress,” says Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington (CREW), a government watchdog. “Sexual conduct per se is not an ethics violation.”
But exceptions to this no-fault culture have emerged over time. And sex over phone lines or the Internet introduces a new layer of potential exposure for members of Congress and ambiguity about how the institution should respond to it.
“Most of the sex scandals of the past involved going to a motel and sneaking around,” says Ray Smock, a former House historian who directs the Robert C. Byrd Center for Legislative Studies in Shepherdstown, W.Va. “This electronic stuff is uncharted water."
The stripper and the committee chairman
The first modern congressional sex scandal with public consequences dates to a late-night incident in October 1974. It involved stripper Fanne Foxe, who leapt into Washington's Tidal Basin and was rescued by police, and Rep. Wilbur Mills (D) of Arkansas, the powerful chair of the House Ways and Means Committee. The incident hit the front pages. A subsequent appearance with “the Argentine firecracker” on a burlesque stage kept this narrative of bizarre behavior alive. Mr. Mills resigned his chairmanship that December, citing alcoholism, and did not seek reelection in 1976. He never faced a formal investigation by his House peers.
The same year, the House took no action against Rep. John Young (D) of Texas, after an aide charged that she had been put on the payroll primarily for sex, or against Reps. Joe Waggonner (D) of Louisiana or Allan Howe (D) of Utah, who were arrested after soliciting police decoys who were posing as prostitutes.
By the 1980s, the House, along with the general public, began to take sexual misdeeds more seriously. Reps. Gerry Studds (D) of Massachusetts and Daniel Crane (R) of Illinois were both censured by the House in 1983 for sexual relations with teenage congressional pages. Mr. Studds went on to serve 14 years, but Mr. Crane was defeated in the next election.
In recent years, harassment of younger staff has evolved into a swift ticket out of Congress for lawmakers on both sides of the aisle. In September 2006, Rep. Mark Foley (R) of Florida resigned his seat 10 days after reports of sending sexually explicit computer messages to former congressional pages. In March 2010, Rep. Eric Massa (D) of New York resigned a month after allegations of harassment and groping of younger staff.
GOP leaders still cite the Foley scandal as contributing to the loss of their House and Senate majorities in the 2006 midterm elections.
The perks of congressional office
The current speaker, John Boehner (R) of Ohio, has declared “zero tolerance” for scandal. After Feb. 9 disclosures that Rep. Christopher Lee (R) of New York, who is married, had sent shirtless photos of himself via a dating website, he turned in his resignation to Mr. Boehner the same day.
Another element that elevates sex to an actionable issue for a member of Congress is evidence of abuse of office. For most of congressional history, a sex scandal alone wasn’t enough to end a congressional career. But a sex scandal plus evidence that a lawmaker used the perks of congressional office is viewed on both sides of the aisle as a more serious offense.
After Elizabeth Ray, a secretary on the House Administration Committee, famously told reporters in 1976 that her $14,000 a year job was in exchange for sex – “I can’t type. I can’t file. I can’t even answer the phone” – Rep. Wayne Hays (D) of Ohio’s days as chairman were numbered. Under pressure from House Democratic leaders, Hays resigned as chair and announced that he would not run for reelection.
House Democrats are using the Hays precedent as a template for responding to the public uproar over the Weiner “sexting” disclosures. No one has denounced sending sexually explicit images or messages per se – a position that potentially opens up all members to scrutiny of e-mail and text messages. Instead, House Democratic leader Nancy Pelosi on Monday called for an investigation “to determine whether any official resources were used or any other violation of House rules occurred.”
On Tuesday, she sent a formal request to the House ethics panel to determine “whether the Rules of the House of Representatives” have been violated.
Were official resources used?
In his press conference on Monday, Congressman Weiner responded to concerns over whether his “inappropriate conversations conducted over Twitter, Facebook, e-mail, and occasionally over the phone” involved the use of official resources. He said that he used his personal BlackBerry and home computer.
“I don’t have knowledge of every last communication but I don’t believe that I used any government resources,” he said.
Asked whether he conducted any of these exchanges on congressional time, he responded: “Congressional time could theoretically be anything. Congressmen work long hours. But I don’t believe I did anything here that violates any law or violates my oath to my constituents.”
He also dispensed with a defense of choice in many congressional sex scandals. “I don’t do drugs. I was not drinking,” he added.
House rules allow “incidental use” of equipment owned, leased, or reimbursed by the House of Representatives, provided such use is “negligible in nature, frequency, time consumed, and expense,” according to the Members’ Congressional Handbook.
"For example, limited use of government resources to access the Internet, to send or receive personal e-mail, or to make personal phone calls is permissible, so long as the use meets the above criteria, and otherwise conforms with the Regulations of the Committee on House Administration and the Code of Official Conduct,” including the standard of conduct that reflects “creditably on the House.”
“The regulations dictate what the content must conform to as well as the use of official equipment,” says Salley Wood, director of communications for the House Administration Committee.
What about Wi-Fi?
A new issue raised by the Weiner investigation is whether use of the House Wi-Fi system also constitutes use of official resources. If, for example, a member sent an e-mail from a personal Hotmail account but was using the office Wi-Fi, it would go out with an IP (Internet Protocol) address through the House server, just as if the member were using a computer hardwired to the office Internet. “That’s an issue that has never come up,” says spokeswoman Wood.
Another issue potentially involving the use of official resources is whether Weiner volunteered the use of his congressional staff when he volunteered to help one of his correspondents field questions from the news media. If so, it’s a violation of House rules. “My staff has never had any contact with her,” Weiner said on Monday. “My staff did not know the actual story here. I misled them as well.”
Meanwhile, congressional Democrats are keeping their distance from Weiner and his woes. On Tuesday, Senate majority leader Harry Reid told reporters: “I know Congressman Weiner. I wish I could defend him, but I can’t.” Asked what he would say if Weiner asked for his advice, Reid said: “Call somebody else.”
“It’s very fair to say that the leadership is furious about how he’s handled this,” said a senior Democratic aide. “The letter that [Pelosi] has now written [to the House ethics panel] certainly adds to the pressure for him to go. Some of it may be dependent on the next thing to come out.”