AS it closed the book last month on its investigations into the "Keating Five," the Senate Ethics Committee made one thing perfectly clear: It has the wrong name. Its interest, plainly, is not in ethics. Its concern lies merely with laws, regulations, and rules. In exonerating four of the five senators accused of wrongdoing, it seems to have fallen victim to one that perverse adage: "If it's not illegal, it must be ethical." Ethics and law are different intellectual constructs. That point was made by a 19th-century British jurist, Lord Moulton of Bank, who defined ethics as "obedience to the unenforceable." Law, he noted, was merely obedience to the enforceable rules of a community. Under the law, you do what's right - not necessarily from any deep ethical impulse, but for fear of getting punished.
Law, of course, regulates some of the most crucial aspects of social intercourse. But it is not the central regulator. Most people, most of the time, find most of their behavior regulated by mores, codes, and sets of community-based values that have never been codified as law. Why, when you need a shopping cart in the supermarket, don't you grab away the one that a little old lady is about to take? There's no law governing such situations. You don't do them because, as we've all been told since we were little, "People don't do those things!"
What do we mean, then, when we say that someone is "a highly ethical individual"? We assume that he or she is law-abiding, of course, but we hardly stop there. When were confer that honorable description on a person, we're dealing in large philosophical concepts: integrity, promise-keeping, caring, sensitivity to others, a principled approach to life's tough dilemmas, a unity of public and private behavior.
But what does it mean when the Senate declares one of its own to be ethical? Well, let's look at the process. It's not that the committee didn't labor diligently to discover the truth about its five colleagues: Alan Cranston of California, Donald W. Reigle Jr. of Michigan, John Glenn of Ohio, and Dennis DeConcini and John McCain of Arizona. It probed their relations with Charles H. Keating Jr. of the failed Lincoln Savings and Loan Association. It examined campaign contributions from Mr. Keating to thes e five totaling $1.3 million. It heard in detail about efforts by Keating to have these senators intervene with investigators on his behalf. It quizzed Federal regulators about the senators' meetings with them. It deplored the billions of dollars that tax-payers will lay out to clean up the mess.
But after all that, it found that only Senator Cranston - who has already announced his retirement in any case - perhaps acted improperly. The others it exonerated.
NOT surprisingly, Fred Wertheimer, president of Common Cause, branded the decision "a cop-out." Joan Claybrook, president of Public Citizen, said the committee used the occasion to "hide the sins of most, if not nearly all, other members of Congress." Like many other people, they were upset by the committee's findings. But the findings aren't the issue. The real problem lies in what the Ethics Committee thought it was doing. The committee's report said the behavior of the four exonerated senators "gave the appearance of being improper," showed "poor judgment," and was "insensitive." In the realm of ethics, these are damning indictments. Yet Senator DeConcini exulted that "The committee clearly states in their opinion: I broke no laws and I broke no Senate rules."
Exactly. But was that all the public can expect from its senators - that they break no rules? Is there not a realm of consideration far beyond the law that matters here? Are we bound to accept as "ethical" any action that happens not to break a clear-cut rule?
If that's all ethics means, the trend for the future should be pretty obvious: More and more laws, rushing in to fill the void where ethics once regulated us. Make no mistake about it: We will be regulated. The public, peering into the abyss that opens when ethics collapses and legalism reigns, elect senators not merely to be legal. It wants them to be ethical.