The Enforcers or the Perpetrators?

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

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.<br>
<br>
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.)<br>
<br>
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?<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
---