The Enforcers or the Perpetrators?

After being convicted of money laundering for the purpose of illegally giving corporate money to Texas legislative candidates last week, Tom Delay said, "This is an abuse of power. It’s a miscarriage of justice. I still maintain my innocence. The criminalization of politics undermines our very system and I’m very disappointed in the outcome."

I too have, on several occasions, criticized the criminalization of government ethics. But are Delay and I talking about the same thing?

I don't think so. For one thing, look at the context of the statement. It is all about his own conviction. It follows his insistence that he is innocent, and is followed by his disappointment in the finding of his guilt by a jury. He does not say that he has done nothing wrong, not even that he has not done what he was charged with doing. he only says that he is innocent of a crime.

He follows his insistence on his innocence by appearing to insist that such acts should not be crimes at all, and that making them crimes undermines "our very system." (Note that government ethics professionals similarly talk about unethical conduct undermining our system.)

But is this really what Delay is saying? In other words, is he saying that it's good for our system to have ethics commissions enforce ethics laws administratively, but that it undermines our system to have prosecutors enforce ethics laws criminally, which is what I have argued?

I don't think so. I think the emphasis is more on "politics" than on "criminalization." I think Delay means that it is wrong to enforce ethics laws that deal with politics, that is, laws that deal with the raising of money to run for office. How the laws are enforced is not the issue, but rather enforcing them at all.

And Delay's "system" is not the same "system" that government ethics professionals refer to. We speak of a democracy that features citizen trust and participation. Delay speaks of a democracy that features a complete freedom to obtain all the resources you can muster in order to win an election. One involves political philosophy, the other involves playing a game that has as few rules as possible.

But there is one truth in what Delay says, although he certainly did not intend it: It undermines our democracy when individuals are prosecuted for coming up with clever ways to game the system.

The fact is that no set of rules can deal with every eventuality. Smart people like Delay and his advisers will find a way around them. As long as the principal value is winning, citizens will lose. And in campaign finance, the loss will come not only from individuals winning by taking money from those who have something to gain directly from officials' decisions, but also from the scandals that arise from enforcing the laws against those who ignore them or find clever ways around them.

What Delay is wrong about is who is at fault, the enforcers or the perpetrators. Were he to recognize that ethics laws are minimal guidelines, and that taking advantage of loopholes in ethics laws undermines our system, he would recognize that it is not the criminalization of ethics that is the problem, but rather the need to enforce ethics laws against people like him, who have no respect for the spirit of ethics laws that stand in the way of their winning.

This is not about freedom of expression, as he and his like insist. If it was, he would recognize that this freedom has to be balanced against other values and against his own obligations. When you treat freedom of expression as an absolute, you ignore many equally important values that limit it. Why would people focus solely on one value? Because they want to win and they need to tell the world, and possibly themselves, another story. The desire to win at any cost overrides all other values, including the expression of less well-connected opponents, and undermines our democratic system.

Robert Wechsler
Director of Research-Retired, City Ethics

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