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Fact check: Does violating House ethics rules constitute breaking the law?
April 8, 2016
By Autumn Lewien
In September 2015, a report from the Office of Congressional Ethics (OCE) found that there is "substantial reason to believe" that Representative Mike Honda (D-Calif.) used official resources for campaign purposes and "may have improperly tied official activities [...] to past or potential campaign or political support."[1]
Honda, who has been representing Silicon Valley in the U.S. House of Representatives since 2001, is facing strong opposition in the 2016 election from Ro Khanna (D), a former Obama Administration official who worked in the U.S. Department of Commerce. Khanna ran against Honda in the 2014 general election under California’s top-two primary system, but was defeated by a margin of 2.6 percentage points.
The allegations against Honda have served as a top talking point in a race that was already expected to be a tight rematch. "I do think [the investigation] disqualifies Mike Honda from running. It’s my honest opinion," Khanna told reporters at the 2016 Democratic State Convention in San Jose. "It represents cronyism, it represents giving favors to donors and it’s wrong. And I will speak out about that."[2]
In an interview with KQED, a Bay area public radio station, Rep. Honda responded to Khanna’s remarks: "Violating an ethics rule is not breaking a law," Honda claimed. "There is not a criminal investigation."[2]
Does violating a House ethics rule constitute breaking the law? In short, no; House ethics rule violations are not crimes. However, it is important to note that House ethics action does not rule out a separate criminal investigation on the same matter.
The Honda campaign did not respond to a request for comment.
Background: Ethics violation investigation
A September 2014 article by San Jose Inside alleged that internal emails indicated that Honda’s congressional staffers mixed official business with his campaign and may have rewarded prospective campaign donors with invitations to a State Department Roundtable event.[3] Later that month, Milpitas Mayor Jose Esteves and Cupertino Council Member Rod Sinks—both supporters of Khanna—filed a complaint with the Office of Congressional Ethics (OCE), a nonpartisan, independent entity that reviews allegations of misconduct and refers matters to the House Ethics Committee.[4]
After several months of review, the OCE voted to refer the matter to the House Committee on Ethics on May 5, 2015. In their report to the committee, the OCE noted that there is “substantial reason to believe” that Rep. Mike Honda used official resources for campaign purposes and that he improperly linked official activities to campaign support:
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Congressional staff members appear to have researched a potential campaign opponent, prepared materials for the campaign, used information from the congressional office for campaign purposes, and discussed campaign matters during official meetings in the district office and during official staff retreats. Many of these activities appear to have taken place while staff were on official time, using official resources.[1] [5] |
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On September 3, 2015, the House Ethics Committee announced that it would extend its review of the allegations. The Committee did note that the referral and the panel’s extension does not indicate that any violation has occurred or “reflect any judgment on behalf of the Committee,” according to a joint statement by Republican Chairman Charles Dent and Rep. Linda Sanchez (D).[6]
Ethics rules, law, and criminal investigations
So the question remains: Does violating a House ethics rule constitute breaking the law?
At the most fundamental understanding, no. Although the House Ethics committee carries real investigative power—it can subpoena documents and testimony—it does not have jurisdiction over federal, state, or local criminal law.[7][8] In other words, the Ethics Committee can investigate whether any laws were broken, but it cannot file any criminal charges.
However, this does not rule out any form of criminal prosecution. According to a report on legislative discipline in the House of Representatives, conducted by the Congressional Research Service:
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[i]nternal [legislative discipline] is additional to any potential criminal or civil liability that a Member might incur for any particular misconduct. Members of Congress, like any other persons in the United States, are subject generally to outside law enforcement and criminal prosecution if their misconduct constitutes a violation of federal, state, or local criminal law.[9] [5] |
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In addition, according to Meredith McGehee, the policy director for the Campaign Legal Center, there are ethics rules that track law.[10] Put differently, the same action could both violate House rules and break the law. In these instances—depending on prosecutorial discretion—"the misuse of [House] funds and other resources [...] may result in not only disciplinary action by the House, but also criminal prosecution."[11]
What about Honda’s case? According to the OCE report, "[i]f Representative Honda used official resources for campaign purposes, then he may have violated federal law, House rules, and standards of conduct." The federal law violation arises from regulations defining the permissible uses of federal funds. "Federal law provides that official funds may be used only for the purposes for which they were appropriated," the OCE report reads.[1] In other words, there is potential grounds for a criminal investigation.
How would a criminal investigation arise? From a House investigation, criminal investigations can begin in two ways. An ethics probe may be halted temporarily while the U.S. Department of Justice (DOJ) undertakes an inquiry of its own—for example, late last month the House Ethics Committee deferred to the Department of Justice in an investigation of Rep. Corrine Brown (D-Fla.) for the possible violation of campaign finance and tax laws, among others.[12] Or the investigative Committee may refer an investigation to the Department of Justice.[13]
At present, there has been no indication that action has been taken, either by the Ethics Committee or the Department of Justice, to initiate a criminal review.
Disciplinary actions for House ethics violations
If the Ethics Committee does charge Honda with wrongdoing, the House of Representatives can rule that Honda be reprimanded, censured, or expelled from office. Expulsions, which require a two-thirds vote in the House, are rare, however—in the history of Congress, only five members have been expelled.[14] The House may also levy a fine against a member for violating House rules.[9]
Conclusion
In response to inquiries about an ongoing ethics violation investigation, Rep. Honda claimed that "[v]iolating an ethics rule is not breaking a law," and that the House Ethics Committee’s investigation "is not a criminal investigation."[2]
We find that Honda’s statement only tells part of the story. The violation of House ethics rules does not constitute lawbreaking as House rules are not laws. However, the same action could both violate House rules and break the law. In such cases, the investigative committee, which has no jurisdiction over criminal law, may refer the investigation to the Department of Justice, or the DOJ may launch an inquiry of its own.
In Honda’s case, although the Office of Congressional Ethics report notes that "[i]f Representative Honda used official resources for campaign purposes, then he may have violated federal law," currently there is no indication that any action has been taken to initiate a criminal review.
Launched in October 2015 and active through October 2018, Fact Check by Ballotpedia examined claims made by elected officials, political appointees, and political candidates at the federal, state, and local levels. We evaluated claims made by politicians of all backgrounds and affiliations, subjecting them to the same objective and neutral examination process. As of 2025, Ballotpedia staff periodically review these articles to revaluate and reaffirm our conclusions. Please email us with questions, comments, or concerns about these articles. To learn more about fact-checking, click here.
Sources and Notes
- ↑ 1.0 1.1 1.2 Office of Congressional Ethics, "Rep. Honda OCE Report and Findings," accessed March 31, 2016
- ↑ 2.0 2.1 2.2 Willon, B., KQED News, "A Nasty Silicon Valley Congressional Rematch Heats Up," March 4, 2016
- ↑ Koehn, J., San Jose Inside, "Internal Emails Show Mike Honda Staff, Campaign Broke Laws," September 24, 2014
- ↑ Koehn, J., San Jose Inside, "Khanna, Elected Officials Blast Mike Honda in Ethics Complaint," September 26, 2014
- ↑ 5.0 5.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ U.S. House of Representatives Committee on Ethics, "Statement of the Chairman and Ranking Member of the Committee on Ethics Regarding Representative Michael Honda," September 3, 2015
- ↑ Straus, J., Congressional Research Service, "House Committee on Ethics: A Brief History of Its Evolution and Jurisdiction," March 8, 2011
- ↑ Committee on Ethics, "Jurisdiction," accessed April 7, 2016
- ↑ 9.0 9.1 Maskell, J., Congressional Research Service, "Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives," May 2, 2013
- ↑ Autumn Lewien, "Phone conversation with Meredith McGehee," April 4, 2016
- ↑ U.S. House of Representatives Committee on Ethics, "General Prohibition Against Using Official Resources for Campaign or Political Purposes," accessed April 4, 2016
- ↑ Rahman, R., Roll Call, "Corrine Brown on Ethics Investigation: 'I am Clean'," March 25, 2016
- ↑ Huges, S., and Brody Mullins, Wall Street Journal, "Ethics Committee Refers Ensign Case to Justice Dept.," May 13, 2011
- ↑ Three out of the five members were expelled during the Civil War for “disloyalty to the Union.”
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