making local government more ethical
This is the second of four blog posts on Zephyr Teachout's excellent new book, Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United (Harvard Univ. Press).

A Culture of Gift Giving
In the book's introduction, Teachout notes that, back in the 18th century, the idea of elected officials accepting gifts was already very different in America than it was in Europe. Gifts had "positive associations of connection and graciousness" in Europe, and "negative associations of inappropriate attachments and dependencies" in America. Americans had a more puritanical view of such gifts as "seductive," "luxurious," and "Old World." Therefore, all gifts to officials, including diplomats, had to be approved by Congress, making them public rather than private. The goal was not to prevent bribery, but rather, as Teachout says, to prevent "a culture of gift giving." More positively, the goal was to create "an aristocracy of virtue and talent" instead of an aristocracy of power and wealth (quoting Gordon S. Wood, Radicalism of the American Revolution (Knopf, 1992, p. 183)).

But even then, it was hard for officials to reject or disclose gifts. Teachout tells a story of Thomas Jefferson failure to disclose an expensive gift from the French king, which ends: "his simultaneous disdain for European gifts and his inability to resist them foreshadow a long American practice: our desire to reject and accept the old practices simultaneously."

This is the first of four blog posts in which I will look at Zephyr Teachout's excellent new book, Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United (Harvard Univ. Press), from a government ethics viewpoint. I have already reviewed Teachout's seventh chapter (which appeared separately in draft form), on the history of lobbying regulation, particularly by courts, and have included a discussion of it in my new chapter on Local Lobbying.

The first thing that one should know about the book is that it is not a history of corruption in the United States, but rather a history of the idea of corruption in the U.S. Teachout's focus is on "the anticorruption principle," which she believes was central to the Founders' vision of the United States, and which has, in recent years, been lost sight of. Teachout is very passionate about both the principle and the way the courts have turned their back on it, and this passion is what makes the book so readable and, even, moving. Although it is full of history and appraisals of judicial decisions, it is not just an academic exercise.

The most important thing about this book to government ethics specialists is that Teachout's discussion of corruption is limited to influence on government officials via (1) gifts, including campaign contributions, and (2) lobbying. As she says in the book's introduction, "There are important areas of corruption law that this book only lightly touches on, like contracting rules, transparency laws, [and] state and local government conflict of interest laws ..."

Although this is not a book about the core conflicts of interest issues or about the conflicts of interest programs, Teachout does raise a number of issues and ideas that are relevant to all aspects of government ethics. It is these issues and ideas that my posts will discuss.

U.S. Sen. Robert Menendez is to be indicted this week for bribery and failure to report gifts. Where there is an effective government ethics program, he would be easily found to have committed administrative government ethics violations. In a criminal case, the official has the edge (and he has already formed a legal defense fund, to obtain legal but inappropriate contributions from those seeking favors from him). According to a Washington Post article yesterday, Menendez has a couple of good defenses that he would not have in a government ethics case.

One is that he and the ophthamologist/owner of a company that provides screening equipment for ports have been friends for decades. In most local government ethics codes, gifts from contractors includes gifts from friends who are contractors.

Across the country, requests for citizen complaints provide not only for complaints, but also for commendations. I happened to notice one of these when I was in the nation's capital this weekend, and it got me wondering why this is not done with respect to government ethics complaints and hotline reports.

Wouldn't it be wonderful if ethics commissions were to ask citizens to file commendations regarding government officials' responsible handling of conflicts of interest situations? First, this would require the ethics commission to describe what it means to handle such situations responsibly, which is the core of government ethics, but is too often ignored. Second, this would emphasize that a healthy government ethics environment can be equally, or even better, created by the recognition of exemplary conduct than by enforcement against misconduct (even though the latter is also necessary).

Yesterday, two members of a New York City council member's election campaign were indicted on criminal charges brought by a special prosecutor, who was appointed in 2012. Read this December 2014 New York Law Journal op-ed piece by Brennan Center (NYU) Chief Counsel and longtime New York City Corporation Counsel Frederick A.O. Schwarz, which argues very well that this prosecution was wrongly pursued, replacing the investigation of the New York Campaign Finance Board, which runs the city's excellent public financing program (Schwarz chaired the board from 2002 to 2008). Before the charges were brought, Schwarz called for the special prosecutor to stand down and let the board investigate the matter.

Does the "broken windows" theory, as first stated in a 1982 Atlantic essay by George L. Kelling and James Q. Wilson, apply to government ethics? The theory says that, if small things like broken windows are ignored, people will think that no one cares and, therefore, they will break more windows and move on to more serious misconduct. It's about setting norms and sending signals.

Forget the misuse of this theory in policing, where individuals are arrested for small offenses, sending them into the criminal justice system when they should not be. The focus of the theory was on fixing windows, showing that people do care, and sending the message that good conduct is the community norm.

Isn't this what a good local government ethics program is supposed to do:  try to prevent and fix the small instances of ethical misconduct through training, advice, and disclosure, so that the big ones don't happen? A good ethics officer should dispose of reports and complaints of minor misconduct and misconduct that isn't covered by the ethics code by talking with the official and trying to get her to understand why what she is alleged to have done (whether or not she actually did it, whether or not there is an enforceable rule involved) might be harmful to the government organization and the community if it were to become (or remain) common.