Ethics in Congress II - The Principles of Legislative Ethics and the Appearance Standard

In my first post on Dennis Thompson's book Ethics in Congress: From Individual to Institutional Corruption, I quoted him as saying, "What makes the conduct improper is institutional in the sense that it violates principles that promote the distinctive purposes of the institution." What are these principles? Thompson focuses on three "legislative principles":  independence, fairness, and accountability.

By independence, Thompson means independence "from influences that are clearly irrelevant to any process of deliberation." By deliberation, he means public discussion of the merits of a matter, not, for example, the use of leverage to do things behind the scenes. The value of deliberation applies equally to individual corruption:  “What is wrong with personal gain is that it distorts deliberation. It distracts a [legislator] from public duties … The aim of rules against personal gain, then, should be to keep [legislators'] minds concentrated as far as possible on the substance of issues and standards of fairness rather than on benefits that they, their friends, or their favorite causes might receive."

By fairness, Thompson means playing by the rules. He notes that members of Congress have “obligations to colleagues, staff, challengers, other officials, and the institution as a whole. Fairness speaks first to the rights of members:  protecting their legitimate claims … But it is less often appreciated that fairness also implies that members have obligations.” These obligations of fair play include using the perquisites of office only for official business, accepting responsibility for the reputation of the institution, and respecting the legitimate interests of the other branches. “The obligations of fair play are difficult to codify and are therefore the least developed part of legislative ethics.”

By accountability, Thompson means doing what is necessary to preserve the public's confidence in the legislative process. He notes that “there is a gap between acting for the right reasons and being perceived as acting for the right reasons." And there is a clear reason for this, which is often ignored:  that "citizens judge the ethics of [legislators] at a distance. They do not have the usual cues of personal relations, and they cannot be confident of the motives or the influences that move members to act." Legislators therefore need not only to act for the right reasons, but also to "provide reasonable assurance that they are doing so." That is, they need to avoid the appearance of impropriety.

Why is this accountability? Let's try another approach. When Sen. Cranston was caught up in the Keating Five scandal, he “objected to the suggestion that his conduct should be judged by how it appeared. He insisted that only he could judge his own motives." If a legislator is the only judge of his motives and his conduct, how can he be held accountable for what he does? And if someone else is to judge him, how can they be expected to go beyond appearances?

And yet when a legislator does something that creates an appearance of impropriety, it is usually considered "a minor, lesser offense, a sort of pale reflection of the real offense. ... A former director of the [federal] Office of Government Ethics [said], ‘our attitude is, when there is an appearance problem, that the persons involved have done no wrong, have committed no improprieties, and are presumed to have acted ethically. It is an appearance only.’"

Thompson disagrees. "Properly interpreted, the appearance standard identifies a distinct wrong, independent of and no less serious than the wrong of which it is an appearance. It would be better called a tendency standard because it presumes that under certain institutional conditions, the connection between contributions and services tends to be improper.”

Thompson grounds his view of the appearance standard in the legislator's principal role. A legislator's obligation to respect people’s reasonable reactions “goes to the core of the role of a representative. Citizens have a right to insist, as the price of trust in a democracy, that officials not give reason to doubt their trustworthiness. ... Representatives must avoid acting under conditions that give rise to a reasonable belief of wrongdoing. When they fail to avoid doing so, they do not merely appear to do wrong, they do wrong.”

Thompson shows that much of what we consider to be basic government ethics rules are actually forms of the appearance standard. He puts it this way: “Conflicts of interest can be thought of as appearances of wrongdoing made categorical.” In other words, the situation where a legislator has a conflict between his personal interests and the public interest does not mean that when he votes, he will be corrupt. It means that if he votes, he will appear corrupt.

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959