Whoever…being a public official…directly or indirectly, corruptly…accepts…anything of value personally or for any other person or entity in return for…being influenced in the performance of any official act…shall be fined…or imprisoned for not more than 15 years, or both.

-U.S. Code, Title 18. §201(b)(2)(A) [bribery]

Whoever…being a public official…otherwise than as provided by law for the proper discharge of official ditty, directly or indirectly…accepts…anything of value personally for or because of any official act performed or to be performed…shall be fined under this title or imprisoned for not more than two Years, or both.

–U.S. Code, Title I8. §201tc)(l)(B) [illegal gratuity]

Charles Keating Jr. is that rarest of creatures in the world of political fund-raising-a man who publicly avows what everyone knows to be true.

The Arizona financial executive is now at the center of Senate and FBI investigations involving $I .4 million in political contributions he arranged for five U.S. senators and associated groups. These contributions were made before and after the senators put the arm on federal thrift regulators in 1987 on behalf of Keating’s now-insolvent Lincoln Savings and Loan of Irvine. Calif.

At a press conference last April. Keating said: "One question among the many raised in recent weeks had to do with whether my financial support in any way influenced several political figures to take up my cause. I want to say it in the most forceful way I can: I certainly hope so."

Keating’s contributions to the senators-including four Democrats with whom he. a conservative Republican, had no ideological affinity that might account for his generosity-were clearly things "of value."

The senators advocacy of Keating’s cause at two April 1987 meetings at which various combinations of them intervened with Federal Home Loan Bank Board officials were clearly "official acts." According to Edwin Gray, then chairman of the Bank Board, they tried "to .subvert the regulatory process for their wealthy friend and contributor."

Denying any impropriety or undue interference with the regulators, the senators say there was no connection between what they did for Keating and what he did for them. But Keating’s own admission seems at least as credible as their self-serving denials.

So we have all the elements of the crime of bribery, or at least illegal gratuity, right?

Wrong. It is unlikely that any good prosecutor would bring charges against any of the "Keating Five" senators. For their conduct is altogether typical of what most members of Congress routinely do, under the distended rubric of "constituent service," to raise campaign money.

Venality as Usual

As a group, the Keating Five-including two one-time presidential aspirants, Alan Cranston (D-Calif.) and John Glenn (D-Ohio); Banking Committee Chairman Donald Riegle Jr. (D-Mich.); Dennis DeConcini (D-Ariz.): and John McCain (R-Ariz.)-are not considered among the more venal members of Congress.

While almost everyone in Congress rounds up campaign money from special interests who operate on the assumption they will get something in return ("access" is the usual euphemism), no member in recent memory, if ever, has been convicted of a crime for doing favors for campaign contributors.

This tolerance for legislative influence-peddling, rooted to some extent in the Constitution’s congressional immunity "for any speech or debate in either House," has worked its way into statutory text and judicial interpretation.

The illegal-gratuity provision reaches only those who accept’ ‘anything of value personally for or because of any official act"; this may rule out prosecutions based on campaign contributions. Otherwise. President George Bush himself might have some exposure for doling out ambassadorships to people qualified only by their huge contributions.

The crime of bribery, on the other hand, clearly encompasses acceptance of campaign contributions as well as cash in the pocket. Bui it requires proof of a specific quid pro quo e.g.. "In exchange for your promise to give. $5,000 to my campaign. I undertake to do my best to get the feds oft your back."

Rarely, if ever, is the warm glow of mutual obligation between givers and receivers of contributions reduced to such-crass contractual formality. And a legislator’s actions on behalf of a contributor can almost always be rationalized, as constituent service, even when, as in Keating’s case, one man is cast us a constituent of five senators in four states.

A prosecution of any of the Keating Five based on their benefactor’s boast of the influence-buying objective that most contributors implausibly disclaim would probably be thrown out by the courts. Given our present system of campaign fund-raising, this is as it should be: As Justice Byron White said in his 1972 dissent in United States v. Brewster, it would "vest enormous leverage in the Executive and the courts" to place under the shadow of the bribery law the routine practice of legislators taking contributions under circumstances suggestive of influence-peddling, leaving it to prosecutors to choose among hundreds of potential defendants.

Ingrained Corruption

Still, it is troubling that the same conduct can be at once so akin to the crime of bribery and so ingrained in the life of the political system.

Why do we have laws against bribery in the first place-? Presumably because of a sense that the public welfare depends on members of Congress and other officials deciding issues of state on their merits, not on the basis of who is giving them money. This underlying policy is increasingly mocked by the realities of campaign finance. The traditional rationale for tolerating campaign contributions by special interests is that the First Amendment protects the right to contribute to candidates with whom one agrees, in the hope that they will continue to take similar positions in the future.

But the corruption of Congress by the buying and selling of influence may be reaching a breaking point. To raise the money needed to stay in Congress these days, most members have to cozy up to the Charles Keatings of the world, high rollers who give huge sums to Democrats and Republicans alike, for no plausible reason other than to have chits to call in later.

While such contributions are not bribery, the absence of an explicit quid pro quo does not lessen the harm to the public that the Keating Five and many others in Congress did by harassing thrift regulators at the behest of thrift operators. Those operators were busily fattening campaign coffers while blowing upward of $150 billion in federally insured deposits.

Sometime next year, the Senate Select Committee on Ethics will find itself groping for a rationale either for criticizing the conduct of the Keating Five as somehow extraordinary or more likely, for finding that none of them did anything unethical.

Neither conclusion would bear scrutiny; what these senators did was neither ethical, in the usual sense of the word, nor extraordinary. Is it too much to hope that the stench of this episode may spread the realization that the whole system of campaign financing is rotten at its core, and help crystallize a movement for fundamental reform?