Ethics Newsline®

How are we to think about House Majority Leader Tom DeLay?

These days, that’s a more helpful question than what are we to think about him. Answers to the what question ooze from every media crevice inside the Beltway. But if our goal is not simply to pick sides but to make moral sense of this crossfire, we need frameworks rather than opinions. So we need a shift of focus from DeLay himself to the congressional committee responsible for investigating charges against him.

Those charges took on new resonance last week. As allegations of malfeasance continued to boil up around the Texas Republican, friends rushed to his side at a $2,000-per-table dinner in his honor at the Capital Hilton Hotel in Washington. Meanwhile, his critics ratcheted up their accusations that he misused travel funds and worked closely with lobbyists who now are under criminal investigation. His supporters, however, praised him as a tough politician fighting for conservative ideas and insisted that the attacks reflected nothing but partisan acrimony.

At the center of this vortex sits the House of Representatives’ Committee on Standards of Official Conduct, where charges against him are being considered. Colloquially, it is known as the House ethics committee. These two different names hint at the public confusion between ethics and standards of conduct — and help explain the difficulties the House has in addressing the DeLay accusations.

To sort through that difficulty, consider a useful definition from an early twentieth-century British parliamentarian, Lord Moulton of Bank. He defined ethics as “obedience to the unenforceable.” He then distinguished ethics from law. In Moulton’s lexicon, law entails enforcement, where breaches bring penalties. The phrase “standards of official conduct” suggests a law-based regime, under which sanctions are doled out to punish particular offenses.

The word ethics, by contrast, suggests a framework involving unenforceable but powerful canons of behavior. When breached, the remedy arises largely from public disappointment and disapproval, which can evolve into disrespect and distrust — and even, in a democracy, into dismissal. This framework gives ethics both its authority and its frailty. Because ethics affects us more broadly than law — determining our response toward numerous behaviors on which the law is silent — it can carry considerable clout. But because ethics (by Lord Moulton’s definition) hasn’t yet hardened into formal rules, it can’t exact penalties. Yet since such penalties are exactly what many in the House (and many voters) seem to desire, ethics can be misconstrued as a weak substitute for rules.

That misconstruction puts the Whatever-You-Call-It Committee in a bind. Seen through a legal lens, the committee looks a bit like a kangaroo court. Using only quasi-legal structures and approximations of due process, it nevertheless delivers verdicts that can end careers and produce seismic changes in government. Seen through an ethical lens, however, the committee appears hopelessly entangled in low-grade, tit-for-tat punishments. It appears incapable of grappling with the far broader question of a House member’s ethical principles and moral fitness for office.

The gap between these two views, unfortunately, leaves ample room for members under investigation to mount a familiar defense. “See,” they assert, “I broke no rules, and therefore I’m ethical.” While the first point may be true, the conclusion doesn’t follow. Why not? Apply Moulton’s framework, and the inconsistency stands out in bold relief. In his view, adherence to a basic legal standard is not enough to guarantee that the higher-order but unenforceable ethical canons are being honored.

That’s a point lost on some elected officials but intuitively obvious to many voters. Left unaddressed, it can lead to a collapse of public trust in politicians as well as in Congress. Indeed, that collapse is already occurring. A Gallup survey in early May found that:

• Congress’ job approval rating, at 35 percent, is at its lowest in eight years.
• Nearly four in ten respondents say that both Republican and Democratic representatives in the House are unethical.
• Eight in ten Americans think DeLay’s ethics problems are at least “moderately serious.”

What’s to be done? Three things. First, if the House wants a committee focused on rules, it needs to articulate those rules as explicitly as it does the laws it passes for the nation. Second, if it is serious about enforcement, it needs to set up investigative procedures that include all the due-process protections guaranteed to any other citizen brought to court — a hugely complex process, but necessary under a rule-based regime where trust and bipartisanship are fast evaporating.

Third, it needs to decide how to address situations where the rules are silent but where the majority feels there’s been a breach of the House’s own standard. That standard is articulated in Article 1 of the House “Ethics Manual,” which requires members to act “at all times in a manner which shall reflect creditably on the House of Representatives.” Lawbreaking obviously doesn’t meet that test. But neither do actions that, while legal, violate ethical canons.

Perhaps the House needs an official Ethics Committee, separate from its current conduct committee. The new committee could include not only House members but wise elders chosen by both parties. It could be invited to hand down judgments — nonbinding, unenforceable, but powerful — based on the credibility standard. Without that, the risk remains that members — DeLay among them — will either escape moral sanctions they should have incurred or be legally punished in ways they may not deserve. The DeLay case is too serious to let either happen.

©2005 Institute for Global Ethics