Summer Reading: Eula Biss's "On Immunity"

Eula Biss's excellent book On Immunity (Graywolf Press, 2014) is not about legislative immunity, but about immunity to diseases. And yet there is a great deal of food for thought in it about municipal ethics.

The first parallel can be seen in the "mun" in both "immunity" and "municipal." It comes from the same Latin word "munus," which means service or duty. Who knew that duties were inherent not just in ethics, but in being municipal? Perhaps the goal of a "munificent" government ethics program should be termed "munity." How could a municipality reject munificent munity?

I have already pointed out the second parallel in my book Local Government Ethics Programs, in my discussion of a public health approach to government ethics. Here's what I say there:

The medical approach is individualistic, treating the patient for a disease he catches from his environment. In the context of government ethics, this means enforcing rules against individuals who are caught violating them.

The public health approach identifies the origin of diseases and tries to prevent them from spreading. In the context of local government ethics, diseases originate in institutional corruption and an "unhealthy" ethics environment. If officials keep catching diseases from an unhealthy ethics environment, treating their ethical misconduct individually is a short-sighted and short-term solution. It means one scandal after another, year after year, undermining the public trust more and more as time goes on. This is clearly not a sufficient way to handle ethical misconduct.

Only by recognizing the power of situational forces to corrupt us can we avoid, prevent, challenge, and change them, so that the scandals stop. Just as we need to recognize that we are all vulnerable to diseases, ethics programs need to recognize everyone's vulnerability to situational forces and the need to deal not only with individual conduct, but also with the situational forces themselves. This is similar to what happens during a flu epidemic, where public health professionals try to stop the spread of the flu at the same time that individuals are treated individually.

This blog post will continue to apply the public health metaphor to government ethics.

Herd Immunity
The reason it is important to be vaccinated against diseases is not just so that the individual who is vaccinated will not get the disease. It is so that enough people will be vaccinated against the disease that the process of vaccination will protect everyone, even those who are not vaccinated. This concept is known as "herd immunity." And, in fact, the more people who are vaccinated, the more each individual is protected, because individual vaccination is not foolproof. Even the vaccinated are protected by herd immunity.

Herd immunity works even with vaccines that are not all that effective for each individual (as government ethics laws are said to be by their critics). Biss wrote, "[W]hen enough people are vaccinated with even a relatively ineffective vaccine, viruses have trouble moving from host to host and cease to spread, sparing both the unvaccinated and those in whom vaccination has not produced immunity. This is why the chances of contracting measles can he higher for a vaccinated person living in a largely unvaccinated community than they are for an unvaccinated person living in a largely vaccinated community."

This is certainly true of government ethics. For example, the more people who receive ethics training, the more people will understand the concepts and the less people will feel they can get away with conduct that their colleagues will not understand as unethical. The more people who seek ethics advice, the more everyone will feel obliged to seek ethics advice. The more advice that is given, the clearer the guidance will be and the more protected each individual will be from being accused of ethical misconduct. Everyone wins. Finally, the more people who report ethical misconduct by their colleagues, the less misconduct there will be to report. With training, advice, and reporting, even the worst ethics environment can be changed, even if not everyone supports it and even if the ethics code is mediocre. Herd immunity.

It is worth noting that those in local governments who most vociferously oppose government ethics programs, their independence, and their enforcement powers are usually the highest-level officials, who often exclude themselves from these programs when they do establish them. This is also true of those who choose not to immunize themselves through vaccination. These individuals tend to be highly educated. Northern California, the home of Silicon Valley, has the highest rates of refusal to vaccinate children. In government, this self-exclusion from immunity is more serious, because it is these high-level officials who determine the ethics environment and act as role models, one way or the other. They are the only ones who can undermine herd immunity.

Contamination and Unnaturalness
There are many people who are opposed to vaccinating their children. There are also many people who are opposed to government ethics programs, most of them in government and academia. According to Nadja Durbach, as quoted by Biss, anti-vaccinators see bodies not as potentially contagious and therefore dangerous to society, but rather as vulnerable to contamination and violation. Similarly, those opposed to government ethics programs do not see government officials as contagious in a way that would create a poor ethics environment (not to mention susceptible to blind spots), but rather as ethical individuals who can make their own ethical decisions without government interference, which violates their personal freedom and professional skills. These anti-vaccinators see government ethics programs as just as unnatural as vaccines.

But government ethics programs, like vaccines, are not violations of government officials, at least if they are run responsibly. Nor are they unnatural. As vaccines "invite the immune system to produce its own protection," government ethics programs invite government officials to deal responsibly with their conflict of interest situations, and they guide and facilitate this process. Such programs provide training and advice, and require disclosure, to help officials do the right thing and ensure that their colleagues do the right thing, as well. They not only offer enforcement of rules, but also, when officials seek advice, protection from enforcement.

"Infectious disease is one of the primary mechanisms of natural immunity," Biss wrote. "Whether sick or healthy, disease is always passing through our bodies." So is temptation to engage in ethical misconduct, not to mention our colleagues' misconduct, which often implicates us, even if only by inaction or a lack of curiosity, a failure to take a risk to protect the government organization or the community. We are constantly being infected, and constantly fighting off infections, sometimes without success. An effective government ethics program, especially one accepted by government leaders, greatly increases the odds of fighting off an infection, and cuts both the amount of infection and the risk of reporting misconduct.

Ethics Training
What a vaccine does is to train the immune system so that it is capable of "remembering" pathogens it has not yet seen. This is a perfect description of ethics training, at least with young employees and new elected and appointed officials. Training experienced officials should, in this sense, be different, because they've seen it all and have learned to deal with it in their own way, which may or may not be optimal for them, but is less likely to be optimal for the government organization and the community.

Ethics Advice
Biss quotes the bioethicist Arthur Caplan's warning about the state of medical practice today, "If you keep telling people that it's just a marketplace and that they're just clients and that the autonomy of the patient is what must be served to make them happy customers, then you have a collapse of professionalism in the face of consumer demand."

This is also a problem with the practice of government ethics advice. The autonomy of the government official is too often given priority over the good of the government organization and the community it serves. This means that ethics advice is provided only on the occasions and at the times officials ask for it, and only with respect to the questions that concern them. It also means that officials expect confidentiality and privacy, as if their conflicts of interest were private rather than public matters. This makes it difficult for most government ethics advisers to provide anything more than legal advice, often after the fact, and difficult to make this advice available to all officials, so that the rules are clarified with respect to particular situations.

Immune Systems
We all know from the horror of autoimmune diseases how important immune systems are to us. But immune systems are not all benevolent. Fevers and inflammation are two of the ways immune systems protect our bodies. These means of operation are known as "regulation."

Similarly, government ethics programs are not all peaches and cream. In the short run, they can undermine trust in a government via enforcement actions and the bad press that accompanies them. But in the longer run, enforcement, as well as training, advice, and disclosure, can increase trust by preventing further misconduct and enforcement actions, and by showing the public that government officials as a group have chosen to deal responsibly with their conflict situations.

The alternative, a lack of regulation, means scandals, coverups, and criminal actions that undermine the public's trust far more than a government ethics program. As in the human body, regulation is useful in a local government organization.

The dangers of immune systems also apply to what is generally referred to as "integrity," but which is better referred to as "belief in one's integrity," because integrity is never a fact, does not operate the same in all situations, and can never be known by the public. We believe that personal integrity is as purely good a thing as a strong immune system. But, as in the 1918 Spanish flu pandemic, strong immune systems can kill healthy young adults by causing an overwhelming immune response.

As with young adults in 1918, those with a strong belief in their integrity are sometimes the most susceptible to blind spots regarding their own actions. Therefore, a person with a strong belief in his integrity can, for example, act under the belief that it is good for the community to help his wife get a government contract because she is the best person for the job, not realizing that his involvement is totally inappropriate, no matter how good she may be.

Historical Increase in Ethics Oversight
Biss notes that, as a child, her father was vaccinated against five diseases, she was vaccinated against seven diseases, and her son was vaccinated against fourteen. But she also notes that one dose of the smallpox vaccine her father was given challenged his immune system more than all 26 doses of vaccine her son was given.

There is a similar parallel in government ethics. In the old days, when corruption was more prevalent in most local governments, a government official's immunity to situational forces was tested far more than an official is today by taking ethics training, seeking advice, and filing disclosure statements. Which is more dangerous to each official, not to mention to the government organization and the community? Why do some critics think that things are harder on officials now? Do we really prefer to have young officials experience lesser corruption and learn how to deal with it that way, rather than trying to prevent corruption from occurring?

The Other Immunity
As noted at the beginning of this post, the word "immunity" is actually part of government ethics, although it isn't clear whether it refers to a government ethics rule or a way of getting around accountability for ethical misconduct. I am referring to legislative immunity, which prohibits enforcement of at least criminal laws against sitting legislators (and others) who are engaging in legislative activities. I consider legislative immunity a government ethics rule (a minority view), because it protects officials from acting out of fear of prosecution (that is, in their self-interest) rather than for the good of the community.

However, when legislative immunity is used to get around ethics enforcement itself, then it is just the opposite of a government ethics rule:  giving oneself a special exemption, just the way someone exempts themselves from having to vaccinate their children, at the expense of the community. This kind of legislative immunity provides legislators with a loophole to engage in ethical misconduct, legalizing for them what is illegal for others. Even if legislative immunity is constitutional, it can be overriden by legislators, either as a group passing a law or individually by signing away their immunity from ethics laws.

In fact, in terms of its roots, "immunity" means, in Biss's words, "an exemption from service or duty to the state," or to the community. Why, in the context of government ethics, should government officials ever be exempted from service or duty to the community they represent or work for? Why should any official want to remain exempt from ethics laws and, therefore, vulnerable to an unhealthy ethics environment and the possibility of scandal?

It would be helpful if local officials used the metaphor of "body politic," which goes back to the ancient Greeks and went out of fashion in the twentieth century. This metaphor has each of us, including officials, as bodies within a larger body. Now, the word "body" is just another term for board or legislature. But the body politic imagines the city as a living organism, which depends on the lives of all those within it, just as a society that seeks to protect itself from a disease depends on everyone to vaccinate themselves and on leaders to support and facilitate vaccination.

As Biss says, "our bodies may belong to us, but we ourselves belong to a greater body composed of many bodies. We are, bodily, both independent and dependent." No group can be excepted, and especially not community leaders. "We resist vaccination in part because we want to rule ourselves," says Biss. But as officials, our political leaders cannot rule themselves. They can only rule themselves as citizens.

Sting Operations
I'm not crazy about sting operations, but in a world without effective government ethics programs, they can appear necessary. Biss's book discusses something very similar to sting operations:  variolation (better known as inoculation), the practice of infecting people with a mild case of smallpox in order to prevent more serious illness, a practice that is hundreds of years old in China and India, and was brought to America from Africa. A sting operation infects government officials with temptations in order to protect the public from those who give in to temptation. Only the weak fall prey to such temptation.

The problem with both practices is that they focus on the individual — the medical approach rather than the public health approach. Stings are said to benefit the public, but actually they undermine trust and make it look like lots of politicians (or all of them) are rotten rather than the environment they work in. A public health approach to corruption will have an effect that is broader and longer lasting.

War and Government Ethics
Biss quotes Susan Sontag on the subject of war, "one of the few activities," Biss says, "in which we are not expected to consider practicality and expense." This also applies to programs that use military metaphors, such as the War on Drugs and the War on Poverty. I would add to this the protection and creation of jobs.

But when it comes to government ethics, there are no military metaphors (and any War on Corruption would inevitably be criminal in form). Government ethics programs are usually considered too expensive and impractical. The most common metaphor for such programs is "window dressing." Manikins filling desks. The fact that the goal of public trust in government is priceless, and makes everything else in government easier to accomplish, does not seem to matter.

In addition, while preemptive strikes were given a bad name in the Iraq War, preemptive strikes in both health care and government ethics are very useful. They make further health care unnecessary, and they prevent ethical misconduct. Government ethics programs are primarily preventive not, as many people think, all about enforcement.

The AIDS Epidemic
One of the things people learned from the AIDS epidemic is that if you lead a cautious life and limit your contact with others, then you'll be spared the disease, unless you're very unlucky, like Arthur Ashe. The same sort of lesson has been learned in response to corruption in government, against which there is seen to be no vaccination. The only way to ensure that one will not catch the disease — will not be contaminated — is to stay away from government.

While having multiple sex partners is not a necessary element of a good community, widespread participation in local government is. And not enough people are participating.

Therefore, local governments need to act in ways that will increase participation by letting citizens know that they don't have to worry about becoming contaminated. An effective and inexpensive way is to have a good, independent government ethics program.

Another thing people learned from the AIDS epidemic is that it is important to preserve a strong immune system to protect oneself. The problem is that people with strong immune systems can carry a disease without symptoms and pass it on to others.

Similarly, it is not enough for a government official to be a man or woman of integrity. Even if integrity might protect the individual official, it is not enough to protect the organization. Those who say they do not need a government ethics program in order to act ethically do not recognize that the organization needs it, as does the public.

A Shared Space
At the very end of the book, Biss quotes her young son on the subject of moles, the animal kind:  "They aren't blind, they just can't see." As Biss adds, the same can be said of humans:  that we don't see that we are, for example, as Martin Luther King, Jr. said (and Biss quotes here), "caught in an inescapable network of mutuality." This is true of disease, of community, and of government organizations. Government ethics, like immunity, is "a shared space — a garden we tend together." These are the last words in Biss's brilliant book.

Robert Wechsler
Director of Research-Retired, City Ethics