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Gaming Delay, or Ethics for Fun and Profit

Let's be clear: I think the move to change the rules of the House Republican Party to allow Delay to stay chairman is a political mistake, for many of the same reasons that Prof. Bainbridge does. That said, I have a standard rule: whenever one side of a political argument is getting indignant and self-righteous, check the facts. When a hardcore (see comments) Democratic leftist law professor who was nonetheless a defense attorney is calling a yet-to-be-indicted man a crook, there's definitely more to the story.

The Background
First of all, look at the coverage of the story. To get the summary from the Washington Post:

House Republicans, in an unrecorded voice vote behind closed doors, changed a 1993 party rule that required leaders who are indicted to step aside. Under the revised rule, an indicted leader can keep his or her post while the Republican Steering Committee -- controlled by party leaders -- decides whether to recommend any action by all GOP House members.

The rule change applies equally to state and federal indictments.

Republicans made it clear they will not act if they think their leaders are targeted by grand juries or prosecutors motivated by politics, which is the charge DeLay and his allies repeatedly have leveled at a grand jury based in Austin. The grand jury has indicted three of DeLay's political associates in connection with fundraising activities for a political action committee closely linked to DeLay.

So, let's see how that plays among the punditry. First, E. J. Dionne, declaring that Republican's ethics are slipping:

Shays reminds us that when and he and Gingrich were in the opposition, they gave voice to many who worried about the dangers of an entrenched majority that came to assume it had a right to power and could do whatever was necessary to keep it. Gingrich's line about the Gilded Age just may have come 12 years too early. You don't have to be a crackpot to believe that the Gilded Age is now.

Or Prof. Heller, again steaming up the Yin Blog:
Hypocrisy, thy name is Republican. Let's not forget, the Republicans originally passed the indictment rule because they said they had higher ethical standards than the Democrats . . . . Ethics, integrity, honesty -- all are negotiable when it comes to increasing Republican power. The Republicans truly have no shame.

Both are rightly, of course, accusing the Republican leadership of hypocrisy. But it's an odd sort of hypocrisy. Normally such accusations come from within a moral framework similar to the the framework of the accused. And yet the Washington Post doesn't mention what MSNBC buries in the last paragraph:

House Democrats have a rule requiring committee leaders to step aside in case of a felony indictment, but it does not apply to top party leaders. Pelosi said the rule would be expanded to include the top leadership.

(emphasis added) How does this jibe with Pelosi's accusations (let alone Dionne or Hellers?):
"If they make this rules change, Republicans will confirm yet again that they simply do not care if their leaders are ethical. If Republicans believe that an indicted member should be allowed to hold a top leadership position in the House of Representatives, their arrogance is astonishing."

But of course, until it became convenient to the Democratic Leadership (i.e., pretty much yesterday), the Democrats formally believed the same thing. Now, while the hypocrisy charge is a pretty good one--the Republicans changed their rule to illustrate "moral superiority" back in the days of Dan Rostenkowski--hypocrisy itself is a pretty venial sin. And if the accusers are, at best, saying "The Republicans are daring to lower their standards back to where ours have been since the days of [not heretofore known as moral paragon] Dan Rostenkowski," then any accusation of the sin of hypocrisy must be met immediately by a question: do you really think the substantive rule is a good idea, and if so, why are you only raising your standards now?

Doing so isn't precisely hypocritical, though a case could be made, but rather grossly opportunistic. And I suppose that's not even a venial sin, but that's a shaky soapbox from which to preach.

The Rule
Once we've gotten past the shocking discovery that Republicans and Democrats on Capitol Hill can be hypocrits and opportunists--and I don't generally go to Washington for lectures on morality, nor get shocked by petty misbehavior there--a reasonable person should look and see if the rule change makes sense. So let's start with the rule itself: what does it say? (I'll admit, I'm relying on news reports because the House Republican Policy Committee and the House Republican Conference don't mention the rule change at all.) Essentially, it states that when a leader or chairman is indicted, the Republican's Steering Committee must move within 30 days to recommend to all House Republicans whether the member should be removed from his position. It's basically put a bit of discretion into an otherwise bright-line rule.

From the point of view of justice, this is probably wise. After all, for all you hear about Delay's ethical problems, let's consider what the Ethics Committee had to say about Rep. Chris Bell, who has brought most of the House ethics complaints against Tom Delay:

The committee's Republican chairman and senior Democrat used the four-page letter to Bell to warn lawmakers that making exaggerated allegations of wrongdoing could result in disciplinary action against the accuser.[1]

That accusations of impropriety frequently have political motivation is nothing new. Indeed, the Republicans stand on a very thin reed when they mention that an anti-Delay investigation is "political." Of course it is, as was the one which felled Rostenkowski, the accusations of ethical lapses by Tip O'Neill, Newt Gingrich, Hilary Clinton (to mention only book scandals), etc. The incentive to bring such prosecutions or investigations is going to be as strong in opponents as the instinct to protect the defendant will be strong in allies. The fact remains that sometimes such politically-motivated accusations will be true.

Nonetheless, in the face of such accusations, it may be that a bright-line rule requiring leadership officials to step down would be inappropriate. After all, as Republicans rightly point out, it is giving a veto on leadership appointments to opposition prosecutors.

In Defense of the Bright Line
At the end of the day, however, I still think the Republicans should have stood with their old rule. As Prof. Bainbridge points out, this has been a media gift to their opponents. But more substantively, I'm not certain the bright-line rule wouldn't have worked better, discouraged more improper prosecutions and ethics complaints, and been on the whole more just. And frankly, Nanci Pelosi should thank her stars that Republicans don't take my advice.

Not to sound too much like the Seven Habits of Highly Effective Pirates, but one solid rule in conflict is to always consider your opponent's next move. Let's say that a Democratic prosecutor did bring a highly suspicious indictment against Delay, and the Republicans made Delay step down, making it clear that his replacement was just there until the indictment was quashed. Sure, that's a bit unjust to Delay, since given the two-year terms in the House the case might very well not be concluded before he's up for re-election. But I think the Republicans could have legitimately told him that no matter how useful he's been, he should take one for the team.

On the other hand, look where this would leave Republicans. Their response could have been, "Not only are we following our own rules, but let's note that the Democrats still aren't playing by our standards, and they're taking advantage of us. Sure, it puts us at a disadvantage, but that's why you get when the party of lawyers starts manipulating the rules of the game." Make that the top talking point for every Republican asked about it, and within days it will become almost insufferable. Look who gets painted as hypocrits now!

What's the next move? Well, the Republicans still have control of the DOJ, and thus can move around Republican-leaning federal prosecutors. We have a governor in California, a mayor in New York, and dozens of other officials who now have an incentive to instruct investigators to look into Democratic candidates. Does anyone truly think that Republicans are the only folks with skeletons in the closet? Sure, Texas politics aren't pretty, but I've lived in Detroit: how closely does one want to look at David Bonier? How about Ms. Pelosi? Chuck Schumer (assuming the Senate wants into the game) or Charles Rangel? I'd imagine that if Delay had stepped down, the Democrats would have had to prepare for a game of revolving leadership, as every leader proposed came under attack.

Yes, the bright-line rule would lead to a lousy few months, maybe a year.

But then eventually both sides would very likely see how fruitless the tactic is. Just as Congressman Bell has gotten a firm talking-to, both houses of Congress would start disciplining those who made unfounded ethics complaints. Party leadership would start reigning in rogue prosecutors. At the end of the day, the profit in the battle is very low so long as both sides join it. New rules can be put in place to discourage misuse of the old ones.

In the end, I think the final equilibrium in the system would be slightly more ethical, and less fraught with conflict, than the present system set in place by protecting Delay. The Democrats now have an incentive to bring as many thinly-backed accusations against Republicans as possible: each one gives them more "hypocrisy" headlines. And the Republicans have no incentive to be more restrained, especially if Pelosi is true to her word about changing the Democratic rules: either they enjoy Democratic hypocrisy when they change their own rules, or they nix a few annoying chairmen.

Of course, all of this fits my preconceived notions about rules against standards: that rules will lead to a lower level of deviancy in the aggregate, but end up with unjustifiable results in individual circumstances, while standards are adjustable to the individual but liable to be abused by less-than-angelic officials. So my predictions may very well be suspect. Still, it's a pity the Republicans didn't at least try.

[1]This pretty confirms the impression I received during my time in the Senate, when staff counsel were always concerned with the minutiae of our activity to make sure we couldn't contradict a set of rules so complex that very few of us regulated by them could understand them. Call me a cynic, but I'm usually against "ethics" rules (as opposed to general laws) because I've yet to meet one that hasn't evolved into a system of self-protection mixed with a weapon for political backbiting.


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Just for the record, I am not now, nor have I ever been, nor will I ever be, a Democrat. I thoroughly loathe the Democrats, in some ways more than I loathe Republicans (not subscribing, except in extreme circumstances like Bush's re-election, to the principle that the enemy of my enemy is my friend). But what good (or fun) is it to criticize the minority party, except when they really, really deserve it? There's no need to beat an old dog when he's down... (Intelligent and interesting post, by the way. I don't completely agree, of course, but your position is well-taken.)
Prof. Heller: Noted and corrected in the text above.
I am an expatriate American who has run accross the expression "bright-line" rule and can't figure out from the context what it means. Would someone care to enlighten me? TNX

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