Ethics Newsline®

Is ethics a zero-sum game? Is there only a finite amount of it in the universe? If you use up a lot in one place, is there less left elsewhere?

Observers of the U.S. House of Representatives may think so. Over the last six years, as ethics has come roaring into public prominence, it has all but vanished from the House radar. I can think of no period in the last decade when the word “ethics” appeared more frequently in the headlines — not only in stories about government, but in reference to business, education, sports, scholarship, science, the judiciary, the military, and even the church. During that same period, ethics issues in the House have fallen into a chasm of silence.

Now a group of eight nonprofit watchdog groups convened by the Campaign Legal Center and including Common Cause wants that changed. The coalition seeks to strengthen the House ethics committee, officially named the Committee on Standards and Official Conduct. In the past, House ethics battles were high-stakes dramas, resulting in one former Speaker resigning (Texas Democrat Jim Wright) and leading to a $300,000 fine for another (Georgia Republican Newt Gingrich). Exhausted by these battles, members inaugurated in 1997 a kind of truce between Republican and Democratic members to prevent ethics charges from being used as political weapons.

At the same time, a House rules change also prevented outsiders from raising ethics charges against members. The watchdog coalition, spotting some alarming ethical hotspots in the House, wants that rule changed back. Nobody inside the House is willing to raise alarms, it says — and nobody outside is able to.

That’s a good suggestion. But the real problem lies in confusion over the roles of morality and legality. We need clarity on three things:

1. Ethics and law aren’t the same. Ethics is best understood, as Lord Moulton of Bank wrote some 80 years ago, as “obedience to the unenforceable” — obedience to those broad but unactionable values and virtues of a culture. Law, by contrast, is obedience to whatever can be enforced through penalties and sanctions. The Committee on Standards and Official Conduct is concerned less with ethics than with law. Its task is to enforce specific rules which, if broken, lead to punishment. It has no mandate to be the ethics police.

2. Letting itself become an ethics body blurs its real duty to regulate. As a result, the House committee ends up practicing Ethics Lite, a hybrid that combines unsystematic and ad hoc methods of values-based moral reasoning with watered-down versions of judicial practice unprotected by rigorous due process. Like most multipurpose tools that do several things indifferently and nothing really well, it is constantly in danger of producing either flaccid ethical chatter or the rigorless findings of a kangaroo court.

3. Standards and conduct are necessary but not sufficient. A separate body, with the word ethics in its title, needs to consider cases where the regulations are silent — where neither a House rule nor a federal statute has been breached. Ethics addresses issues where nothing is illegal but where public judgment questions the rightness of an action. Such issues come in two flavors: right versus wrong (involving good and bad behavior) and right versus right (involving two ethically defensible but mutually opposing views).

Increasingly the nation is faced with issues demanding moral resolution that lie beyond the law. Consider two current examples:

One concerns egregious compensation among some charitable foundations. Legally, foundations can pay trustees what they wish. Ethically, the public is outraged. Unless the foundation community itself effectively mounts a regime of self-regulation — based on its own ethics — it may find itself facing new legal restraints.

The other concerns reports of U.S. Supreme Court Justice Antonin Scalia’s duck-hunting trip with Vice President Dick Cheney. Here there are compelling moral arguments on both sides: allowing the justices the right to enjoy friendships and interchanges usual to people in their positions on the one hand, and preventing justices from being swayed (or, more importantly, giving the impression that they may be swayed) by the perks of office and personal loyalties on the other.

Both sorts of issues — right-versus-wrong and right-versus-right — need our careful attention these days. To go after these complicated questions with only the blunt instrument of compliance is, finally, to reinforce that tired old saw that says, “Well, if it ain’t illegal, it must be ethical.” Nothing could be further from the truth. The nation deserves a higher conception of ethics than that.

(c)2004 Institute for Global Ethics