In Congress, Justice DeLayed Is Justice Denied

Posted November 19, 2004 at 4:17pm

Power and principle have rarely coexisted well in Washington. However, even in a city that long ago lost the ability to blush, last week’s vote by Republican House Members on Majority Leader Tom DeLay’s (R-Texas) possible indictment left many breathless.

The GOP did away with an ethics rule that would have forced him to resign from his post if he, as some expect, is indicted in Texas for criminal acts related to fundraising. It is only the latest act of collusion in support of DeLay, who has become the Teflon Don of Beltway politics.

It was only a few weeks ago that the Committee on Standards of Official Conduct reprimanded DeLay for violating ethics rules in a different controversy. It was vintage Beltway theater. The reprimand was crafted to avoid any real punishment of DeLay, who immediately claimed a curious victory and thanked the committee for offering “guidance” on such issues.

Now, DeLay faces the possibility of an actual criminal charge in Texas. Close associates of DeLay have been indicted in Austin for illegal solicitations and campaign contributions. DeLay wanted the GOP to take control of the Texas House of Representatives before redistricting. However, it is illegal to solicit or spend corporate funds on political campaigns in Texas.

One of the letters seized by investigators is from the vice president of a natural gas company that reads: “Dear Congressman DeLay: I am pleased to forward our contribution of $25,000 for the TRMPAC that we pledged at the June 2, 2002 fundraiser.” (TRMPAC is DeLay’s Texans for a Republican Majority PAC.)

In a town that tends to devour those who stumble and fall, DeLay is now a curious figure. His brushes with indictments and reprimands have only seemed to add to his mystique, much like John Gotti.

Indeed, in his triumphant public statements, DeLay seemed to morph with the character of Big Jule in “Guys and Dolls,” who proudly proclaims his record as “33 arrests, no convictions.” That scene is a riot because Big Jule is so out of touch with the measure of good society.

In the halls of Congress, DeLay appears even more out of touch with the measure of good government. Yet, his most recent reprimands only highlight a fatally flawed and feeble Congressional ethics system, where ethical recidivists are allowed to flourish.

Like Big Jule, DeLay has long been the feared heavy in the House. A former exterminator, DeLay is called “The Hammer” for his use of power to punish those who fail to show, as Big Jule’s friend Harry the Horse would say, “the proper respect” for his positions.

DeLay seems to thrive in the borderland between the merely unethical and the outright criminal. DeLay has spent the past 10 years embroiled in scandals involving allegations of bribery, retaliation, criminal fundraising violations and unlawful campaign practices.

In its recent report, the House ethics committee found that DeLay offered to help elect the son of retiring Rep. Nick Smith (R-Mich.) to Congress in exchange for Smith’s vote in favor of the hotly debated Medicare bill last November. (Smith originally claimed that DeLay mentioned $100,000 in contributions, but later stated that no specific figure was conveyed.)

As the committee stated in its report, “it is improper for a member to offer or link support for the personal interests of another member as part of a quid pro quo to achieve a legislative goal.” Rep. Candice Miller (R-Mich.) and Smith were also reprimanded for ethics violations in the matter.

It was a result so contrived it would have made even Big Jule blush. The committee first made sure to reprimand DeLay and his accuser. The report then avoided any real punishment, such as censure, while imposing a symbolic punishment that was gleefully accepted by DeLay. Then, the committee released the report minutes before the first presidential debate, an old Washington technique to bury a negative report in the crush of coverage of a bigger story.

While DeLay is a big supporter for tough sentencing laws, he is fortunate that there is no three-strikes law for the unethical. Consider:

• DeLay was reprimanded for his role in allegedly soliciting a $25,000 contribution from the energy company Westar while the company was seeking a special deal in the energy bill.

• DeLay was reprimanded for asking the Federal Aviation Administration to track the private plane used by Democratic state legislators who were avoiding a vote on a DeLay-backed redistricting plan.

• Delay was given a “private rebuke” in 1999 for threatening retaliation against a Washington trade association for the unspeakable offense of hiring a Democrat as a lobbyist.

• DeLay was implicated in 1996 in a scandal over a shadowy group called Triad, ultimately leading to an FBI investigation and a huge fine for a Texas businessman. (DeLay was able to get Republican leaders to block efforts to reveal information about DeLay’s role in the scandal.)

In addition to his own scandals, DeLay also seems to spawn ethics scandals in close associates, much like a hurricane spins off tornadoes.

Recently, while the House ethics committee was struggling to avoid punishment for DeLay, two of his former associates were being called before the Senate Indian Affairs Committee for allegedly bilking Indian tribes for $66 million in lobbying fees. The two associates, Jack Abramoff and Mike Scanlon, allegedly traded on their connections to DeLay and claimed the Fifth Amendment in testimony in Congress.

Ultimately, the DeLay investigation says more about Congress than it does about DeLay. Congress has ethics rules that are riddled with loopholes, ambiguities and permitted conflicts of interests. Ethics violations are investigated by other Members who critics charge are selected for their “reliability.”

The solution is obvious. Congress should create an independent office of ethics. Congress also needs to rewrite the ethics rules, which are crafted to be so ambiguous that the panel has absolute authority to find or ignore violations.

They work that same way as Big Jule’s famous spotless dice. When Nathan Detroit objects that Big Jule’s dice “ain’t got no spots,” Big Jule assures him: “Oh, I had them removed for luck. But I remember where the spots formerly were.” It is impossible to run an ethics system where Members assure the public that they remember what the ethical rules “formerly were.”

DeLay may be happy with the performance of the House ethics committee, but there is little reason for the public to celebrate. Until there are serious reforms, justice DeLayed will remain justice denied in Congress.

Jonathan Turley is a law professor at George Washington University Law School.