Al Franken’s Future

The Harvey Weinstein revelations and their cumulative impact have given rise to countless Hollywood sexual misconduct scandals, which have altered the cultural atmosphere of our times.

A group of individuals with compelling stories of abuse have come forward with accusations against a number of the rich and famous, including one previously celebrated figure who is currently a member of the United States Senate, “Saturday Night Live” alumnus Al Franken.

Soon after Los Angeles radio anchor Leann Tweeden brought forward detailed allegations that, without her consent, Franken had forcibly kissed her with open mouth and subsequently offensively touched her while she slept, Franken issued multiple apologies and followed up with a request that an ethics committee investigation be conducted regarding his own wrongdoings.

“I understand why we need to listen to and believe women’s experiences,” Franken said. “I am asking that an ethics investigation be undertaken, and I will gladly cooperate.”

Some of Franken’s defenders praised him for submitting himself to an ethics probe. However, from a public relations perspective, Franken had no choice but to take the action he did because of one powerfully strong piece of evidence, which has been widely distributed by the conventional and social media.

A photo depicting a smirking Franken placing his hands on the upper body of Tweeden as she slept is immediately recognizable for what it is, clearly incriminating in nature, and impossible to reasonably defend.

Despite claims by some defenders that the activity in the photo was merely a joke, when taking into account the context that Tweeden has set forth, it is highly likely that Franken intended the action and attendant photograph to be a deliberate provocation.

It is also highly likely that, under the circumstances, Franken has taken the ethics probe approach because it has historically provided a shield to members of Congress who have been accused of corrupt or abusive behavior.

Such an investigation opens up a path for the accused legislator to nurture the image of cooperation while slowing any pending resignation demands. Point of fact: Franken has already been asked by members of his own party to resign. The rules of the ethics committee were written by politicians and seem to have been designed to assist those embroiled in scandal.

Current Senate rules mandate that there be six members on the committee, evenly divided between Democrats and Republicans, with the chairman being a member of the majority party.

After the committee finds that “there is substantial cause for the committee to conclude that a violation within the jurisdiction of the committee has occurred,” it will proceed to conduct a full adjudicatory review. An adjudicatory review normally consists of interviews and sworn statements and can also involve a public hearing. When the committee finishes its review, it will issue a final report to the Senate, which may include a recommendation of disciplinary action. Both the final report and recommendations may be kept confidential at the discretion of the committee.

The committee’s options, with respect to potential disciplinary action, are typically censure, payment of restitution, or expulsion. A censure of a senator is merely a formal scolding for misconduct. Payment of restitution is essentially a fine imposed in order to compensate the victim in a monetary manner. Expulsion is the more difficult option to carry out, since it requires a two-thirds vote in the Senate. Consequently, the Senate has not expelled a member in more than a century.

If we look to history, we see that ethics committee investigations do not usually end up with the accused senator being held fully accountable for his or her actions. In the early 1990s, after only a few months of investigation by the ethics committee, Republican Senator Dave Durenberger was censured and ordered to pay $120,000 in restitution. Durenberger did not run for reelection in 1994 and the next year pleaded guilty to charges of misuse of public funds while in office. He was sentenced to one year of probation.

During the same time period, the Senate ethics panel made the decision not to investigate Democrat Senator Brock Adams, who was accused of sexual harassment and rape. The Ethics Committee sent a letter to the National Organization for Women, which had actually called for the investigation, stating that the investigation would not be pursued for the following reasons: the incidents had occurred before Adams had taken office, the alleged rape had already been investigated by the U.S. Attorney, and the committee had not received a request to initiate proceedings from the alleged victim.

Brock denied the allegations and declined to tender his resignation; however he did end up dropping out of his reelection race.

Around the same time period, Republican Senator Bob Packwood, a public advocate for women’s rights, was accused of multiple instances of sexual harassment. The related ethics investigation lasted nearly three years. Only after the bipartisan committee voted unanimously to recommend that Packwood be expelled did the senator resign.

In 2009 Republican Senator John Ensign acknowledged having an extramarital affair with a campaign aide. The following year an ethics committee began to investigate whether the Senator tried to buy his former aide’s silence. Ensign resigned in 2011, while the investigation was still ongoing. After probing for twenty-two months, the committee concluded that Ensign broke federal laws, and it referred the case to the Department of Justice. The department decided not to prosecute.

Because it is a highly politicized internal Senate process, an investigation by the Senate Ethics Committee generally takes a significant length of time to complete and, unless evidence of misconduct is overwhelming, results in little or no accountability.

More likely than not, an ethics committee investigation of sexual misconduct on the part of Franken will provide a way for the Democrat senator to wiggle out of any repercussions for his reprehensible behavior.