When the Senate ethics committee announced Oct. 23 that it would hold hearings on five senators' ties to thrift executive Charles H. Keating Jr., the six-member panel was split -- perhaps even splintered as many as six ways -- over the propriety of the senators' conduct and the standards for judging it.
After nearly a month of hearings, committee members seem no closer to consensus.
For nearly 100 hours spread over 14 days, they heard conflicting stories about the senators' intervention with federal regulators on behalf of Keating's Lincoln Savings and Loan Association, about Keating's $1.3 million in contributions to the senators' campaigns and causes, and about any links between the money and the favors. They heard a clash of opinions about rules, laws, standards and customs that may have been broken. And they repeatedly raised questions that appear to reflect their own sharply divergent views on each of these points.
None of the panel members has indicated how he would rule in any of the five cases. But Democrats have more consistently than Republicans phrased their questions in a manner indicating sympathy with the senators' positions, most recently on Thursday during a series of testy exchanges with a regulator who had been extremely critical of the senators' actions.
Unlike other panels, the Select Committee on Ethics is evenly divided between the parties: three Republicans and three Democrats. The senators under investigation by the committee include Democrats Alan Cranston (Calif.), Dennis DeConcini (Ariz.), John Glenn (Ohio) and Donald W. Riegle Jr. (Mich.) and one Republican, John McCain (Ariz.).
The panel's problems are compounded by the fact that the hearings, which seemed to be the safest way out of a politically tricky impasse just before the Nov. 6 elections, have become a major media event that has put the committee as well as the "Keating Five" on public trial.
It is as though the hearings were being conducted before two panels of judges. One is composed of their colleagues, starting with the committee and broadening out to the full Senate if the panel recommends formal disciplinary action. The other is the nation.
Within the cavernous Hart Office Building hearing room, dominated by a huge replica of the Senate's official seal, it is a highly complex and painfully personal case involving issues ranging from the instititutional balance of power in Washington to the collegial considerations of fellow members of the Senate "club."
Beyond the Potomac, however, it is a Washington morality play that is beamed coast to coast, morning to night, over the C-SPAN cable television network and augmented by newspaper accounts and other television coverage. Judging by telephone call-in shows as well as mail and calls to senators' offices, many people who have been looking for someone to blame for the multibillion-dollar savings and loan debacle think they have found some of the culprits. And they are relying on the committee for retribution.
These long-distance judges seem to view the proceedings in the broadest possible political and moral terms, while the committee is charged by its rules with looking at the narrower issue of compliance with Senate ethics standards, whatever they are found to be.
As one Senate aide put it, "People out there smell blood; they want blood."
"There's no question but that the tiger's gotten off the leash," another staff member said.
The problem is particularly acute for Cranston and DeConcini, who have been the focus of some of the most potentially damaging testimony. The others have received far less attention, although even Glenn and McCain, who were cleared by the panel's special counsel, are suffering from continued identification as part of the "Keating Five."
Robert S. Bennett, the committee's hard-charging special counsel, began by fingering Cranston and DeConcini as "important players" in Keating's "all-out war" with regulators. Then he singled out Cranston as the only one who actively solicited funds from Keating while Keating was seeking Cranston's help in dealing with the federal regulators.
Later, Michael Patriarca, a senior regulator, said DeConcini "negotiated on behalf" of Keating during at least one of two 1987 meetings between the senators and regulators. Another regulator, William K. Black, said he believed the senators' intervention led to a costly delay in enforcement action against Lincoln, although he offered corroboration only in the case of Cranston.
So far, there has been far more evidence about the intervention than about linkage between contributions and the intervention. But it is expected that James Grogan, Keating's lobbyist, can resolve questions on that point when he is summoned before the committee later this month to produce documents and testify under a grant of limited immunity from prosecution.
During questioning of the 11 witnesses who have appeared so far, committee members have closed in on the central questions from a variety of angles, indicating different and possibly conflicting perspectives on the key points.
Last Thursday, for example, after committee Chairman Howell T. Heflin (D-Ala.) and committee member David Pryor (D-Ark.) challenged some of Black's conclusions, Sen. Trent Lott (R-Miss.) made a point of congratulating Black on his testimony, saying he was "greatly influenced" by it. Moments later, Sen. Terry Sanford (D-N.C.) accused Black and other regulators of approaching the senators with a "siege mentality."
Some committee members appear to be probing for links between money and favors, while others, especially committee Vice Chairman Warren B. Rudman (R-N.H.), have suggested that heavy-handed intervention, standing alone, could be a violation.
Although Bennett has cited cases where senators were disciplined for creating an appearance of wrongdoing, including Sen. Dave Durenberger (R-Minn.) earlier this year in connection with claiming expenses for renting his own Minneapolis condominium, some senators are having trouble with an appearance standard in this case.
"As long as money is required to be elected or reelected, and as long as there are official acts that a senator could become involved in and official acts are done in behalf of a contributor, perception problems arise," Heflin said.
Lott has suggested that the size of a contribution and the proximity in time between the gift and a senator's service to the giver should be factors in any decision; other senators have expressed trouble over where to draw the line.
On several occasions, Sen. Jesse Helms (R-N.C.) has tried to draw a distinction between quasi-judicial and more policy-oriented regulation, while others have glossed over this point in concentrating on the point that riding herd on regulators is a legitimate part of a senator's job.
Nor does there appear to be agreement on what rules may have been violated, outside of a general ban on "improper conduct which may reflect upon the Senate." Bennett has cited nearly 200 years of congressional history to buttress his argument that no specific rule or law need be cited in finding that a lawmaker violated standards of proper conduct and thus should be punished.
But even the standards are in dispute, in part because the issues of constituent service and campaign fund-raising hit so close to home for all senators, including members of the ethics committee.
During their initial appearances before the committee, Cranston accused Bennett of making up standards after the fact, while Glenn said he observes standards that appeared to be in line with those outlined by Bennett. Later, Sen. Daniel K. Inouye (D-Hawaii) called the senators' intervention on Keating's behalf well within bounds for the Senate. In an affidavit released shortly afterward, Sen. Jake Garn (R-Utah) said he became so suspicious of Keating's "arrogance and pushy attitude" that he barred him from his office as far back as 1981.