THE SIX members of the Senate Ethics Committee must now decide whether and how the behavior of the Keating Five differs from what normal senators do every day. The dividing line is not as easy to find as most people, including those normal senators, might wish.
The five ask to be judged individually, as well they should be, but their basic defense is the same. They say that what they did was routine and that they are being made scapegoats for a costly collapse of the savings and loan industry to which they contributed no more and perhaps much less than many others, including members of Congress not in the dock.
They and their lawyers argue that their intercession with federal regulators on behalf of savings and loan operator Charles Keating had nothing to do with the sizable campaign and other political contributions he gave them, that the intercession was neither bullying nor excessive and did not affect the regulatory outcome, and that it violated no Senate rule.
On the contrary, they say they were carrying out a representative function -- on behalf not just of Mr. Keating but of the many people dependent on his institution for jobs and loans -- that under our system is the positive duty of a member of Congress. To suggest that a campaign contribution should be disqualifying, that a senator should be allowed to intercede for anyone except a contributor to his campaign, would be absurd. Nor is it easy to draw up a list of agencies or particular transactions that are out of bounds -- to say, for example, that a senator cannot intercede in any regulatory transaction -- when so much of the relationship between the executive branch and citizens is regulatory.
But the Ethics Committee is not as handicapped as all that. Two acts can be similar and one still be egregious while the other is not. These were mostly large contributions to fairly liberal senators from an outspokenly conservative businessman who has made no secret of his purpose in giving the money, which was to buy influence. Who failed to understand that? The principal federal regulator was told to come without aides to a meeting with four of the senators, then regional officials -- civil servants -- were summoned to a meeting with all five. No one misunderstood the purpose of those meetings either. And, yes, it does matter that the savings and loan later failed, at a likely cost to the taxpayers of $2 billion. The regulators were right; the senators were supporting a speculative venture.
The Ethics Committee is not limited to finding violations of particular Senate rules. Its independent counsel, Robert Bennett, has observed that it also has a standard of propriety to uphold -- that senators no less than other government officials for whom they make the rules must refrain from even the appearance of impropriety. Lawyers for the five say this is too loose and fickle a standard, but it's not that loose. Yes, it's a gray world up there, but it's possible to distinguish between right and wrong. That's the Ethics Committee's job; that's why they call it ethics.