Congressional Ethics for Dummies

Is it wrong for an elected official to influence the government?

When is it OK for a senator to intervene with regulators? When is it wrong for a member of Congress to let a lobbyist affect how he votes? Slate’s ” Explainer” deals with the issue of when such things are illegal. (Short answer: almost never.) But, legal or not, when are they morally or ethically wrong?

The brouhaha over Sen. John McCain’s letters to the Federal Communications Commission (see my “Chatterbox” item “The McCain Mutiny“) reflects two widespread but somewhat contradictory attitudes. What exactly did McCain do wrong? You would think, from some of the criticism, that it is wrong for an elected official in a democracy to attempt to influence the government. You would also think, from the matter-of-fact way PACs and campaign fund raising are now covered in the media, that the trading of money for votes (or for letters to regulators) is a hallowed function of democracy itself.

Clearly, it cannot be wrong per se for an elected official to try to affect the government: That is his job. On the other hand, the practice of buying and selling influence (or access, or whatever it is called this week) is not morally vindicated by the fact that almost everybody does it. So where do you draw the line?

Questions about John McCain’s intervention with regulators on behalf of campaign contributors are now drifting away, largely because McCain’s behavior (so far as one can discern by browsing through a mountain of letters McCain wrote as Senate commerce committee chairman) seems fairly typical for a member of Congress. It’s even typical for a member who goes on to become a presidential candidate and crusades for campaign-finance reform. The Boston Globe this week unearthed a similar intervention by Bill Bradley, who previously had said (incorrectly, it turned out) that he had a “basic policy” never to tell a regulator how to treat anyone who gave him money. (Mitigating factors in Bradley’s case: The company was based in his home state of New Jersey, and he only received two $500 contributions.)

Let’s start by narrowing the area of ambiguity. Taking official actions, including congressional votes, because of campaign contributions is wrong, period—even if it can’t be prosecuted, isn’t even illegal, or actually is a universal practice. At the other extreme, a member of Congress not only may but should vote on important legislation, even if it affects contributors to his campaign. Within the legislative context, there is quite properly no tradition of “recusing” oneself from voting; nor is there much of one for removing yourself from the more active role of writing a bill or amendments. You can’t put your legislative duties in a blind trust.

The question gets trickier when you get into the informal role members of Congress play on behalf of people or companies that have particular beefs with regulatory agencies. One clearly erroneous line was drawn by a Jan. 7 New York Times editorial when it stated, about the McCain case, “It is improper for any chairman of a Senate committee with oversight functions over a federal regulatory agency to intervene on behalf of one company, irrespective of whether that company is a campaign donor.” Does this mean that if Company X tells a Senate committee chairman that it was mistreated by the Justice Department, then the Senate committee chairman can’t even ask a question about it at his next oversight hearing? If so, that committee chairman isn’t doing his job, which in part is to make sure the Justice Department doesn’t mistreat people or businesses.

I t’s tempting to draw the line at “constituent service.” That is, it’s OK for a member of Congress to strong-arm government agencies on behalf of entities based in his district or home state, but not OK to do so for entities based outside his district or home state. The idea is that a constituent has a legitimate claim on the member’s attention, whereas an outsider (especially if he’s a “money constituent,” i.e., campaign contributor) does not. Whether you buy this theory depends on what theory you buy on the general poli-sci issue of whose interests an elected official in a constituency system is supposed to serve: his particular constituents, who voted for—or against—him, or the country as a whole. The premise of our bicameral legislature was that, on balance, House members (“representatives”) would service the constituents, while senators would be expected to take the larger view. This is true in spades when, like McCain, you’re a committee chairman. As chairman of the Senate commerce committee, McCain is charged with paying particular attention to actions by the U.S. government that affect all businesses and their consumers—not just those in Arizona.

If money is not involved, it may even be ethically cleaner for a politician to take up the cause of a non-constituent than that of a citizen whose vote he needs. A vote is, after all, a form of bribe. In fact, votes are the end for which campaign contributions are only the means. An intervention on behalf of someone who cannot even vote for you is more likely to be disinterested. And disinterest (meaning no vested interest, not that you don’t find it interesting) is the correct goal. Elected officials should serve the public interest. Violating this standard on behalf of a constituent is no better than violating it on behalf of someone from another state. When Sen. Dianne Feinstein should serve the interests of California and when she should serve the interests of the United States is an interesting question. When she should put the interests of a resident of California over her own sense of the public interest is easy. The answer is never. Charles Manson may be a resident of California, but that doesn’t mean Feinstein should help him get a loan from the Small Business Administration. This principle should hold in less extreme examples as well.

The law—as explained to me by Peter Schuck of Yale Law School—makes a distinction between when agencies write regulations of general application and when they adjudicate individual cases. The notion is that writing regulations is a legislative function, so it’s perfectly reasonable for elected officials to put their two bits in but that an agency dealing with individual cases is more like a court, and the politicians should butt out. Unfortunately, regulatory agencies aren’t exactly like legislatures or like courts—which is why they’re called something else—and there isn’t always a bright line between “adjudication” functions and “rule-making” functions. Anyway, a member of Congress’ interference in a rule-making can be just as harmful as his interference in an adjudication. The Keating Five scandal, for instance, involved both.

Dennis Thompson, a political scientist at Harvard, proposes in his book Ethics in Congress that members of Congress simply refrain from handling any particular complaints from individuals. All “casework,” as it’s called, should be delegated by members of Congress to “a professionally staffed agency, similar in status to the Office of the Legislative Counsel or the Congressional Research Service.” It’s an appealing, high-minded idea, and it would relieve many grateful legislators from having to deal with somebody’s missing Social Security check. But who believes that a big contributor or fund-raiser will be content to be shunted to this bureaucracy? Anyway, what big contributors want doesn’t usually qualify as casework. Thompson’s proposal would do nothing about congressional votes or pinging agencies on broad policy questions or anything else except narrowly focused personal complaints.

Then there’s disclosure. Alan Morrison, an attorney for Public Citizen, says—rather surprisingly, for a Naderite—that if all contacts between legislators and regulators were made public, “it would sure reduce [abuses] a lot.” (This is surprising because you would expect Morrison to want some impositions meatier than mere disclosure.) As it stands now, you can get most letters sent to regulators by members of Congress if you go through the legal ritual of a Freedom of Information Act request. But there are practical and conceptual limits to disclosure as a solution. First, as John McCain is demonstrating (and corporate litigants have long known), an overwhelming “document dump” can be almost as effective as keeping all the documents secret. Second, disclosure merely passes the moral/ethical question along. It says, “Here’s the evidence—decide for yourself.” It doesn’t provide an answer.

Given the failure of reasonable distinctions to help much in this matter, perhaps we should consider an unreasonable one: that is, pass a law affirming that members of Congress may interfere all they like with regulatory agencies, unless the person or corporation they’re intervening on behalf of is a campaign contributor. There actually is a Senate rule roughly like this, passed after the Keating Five scandal, but it’s fairly toothless. It says a member may contact a legislative agency and even “express judgments” as to outcome. (Although John McCain didn’t “express judgments” in the letter he sent to the FCC that got him into hot water, his document dump shows there was at least one other instance involving a campaign contributor where he did.) But the decision to intervene “may not be made on the basis of contributions or services, or promises of contributions or services, to the member’s political campaigns or to other organizations in which the Member has a political, personal, or financial interest.” The problem is that no congressman ever says, “I intervened with the EPA because’s corporate PAC gave me $10,000.” An outright ban on intervening for any contributors would clear up any ambiguities. No doubt there are situations where intervening to help Greaseco is the right thing to do, despite Greaseco’s contribution. But if so, Greaseco can improve its chances of justice by disbanding its PAC.