Ethics in Congress III - Independent Advice and Enforcement (Summer Reading)

Looking at government ethics through the appearance standard, as Dennis Thompson did in his book Ethics in Congress: From Individual to Institutional Corruption, reveals the great importance of independence to ethics advice and enforcement. No one is in a worse position to see appearances of impropriety than someone who considers his motives to be good, and his goals to be of utmost importance. This is not the mark of a corrupt individual, but rather a common human characteristic. A legislator not only has an obligation to respect people's reasonable reactions to her conduct, but equally has an obligation to recognize how hard it is for her and her colleagues to know how people will react to what they feel is good or, at least, legal conduct.

Recognizing this, it is a legislator's obligation to let someone else determine whether particular conduct creates an appearance of impropriety and, therefore, should not be done. This is why independent ethics advisers are so important to an ethics program. And it is equally important to recognize that someone else should be enforcing these rules of conduct, that is, someone who sees from the same position as the public. The legislator's point of view is not what is important in government ethics.

Taking another approach, Thompson argues that an appearance standard can work effectively and fairly only if it is interpreted and applied by individuals who have no personal or political interest in a matter. He asks, "How can [self-enforcing committees] claim to judge an individual conflict of interest when they themselves stand in a position of institutional conflict of interest?"

Former officials often serve on ethics commissions. They may not currently be in office, but they still stand in an position of institutional conflict of interest. They see ethics issues from an official's point of view. This means that they see what others might consider improper conduct as not only the way things are done, but what they did themselves or accepted in others. They are also concerned for their party, for their former colleagues, and for their possible return to office. Thus, former officials, like present officials, have a political interest in ethics matters and should be excluded from ethics commissions. (This is my own extension of Thompson's argument.)

Thompson also applies his three legislative principles to the idea of having a legislative body enforce ethics laws against its own members. First, he notes that in a legislative body there is strong collegial interdependence, that is, legislators depend on each other to get their jobs done. It is difficult both to judge colleagues objectively and to act on judgments even when they have been objectively made.

In addition, a member implicated in institutional corruption "is seen as simply doing what the job requires or at least permits. Under such circumstances, the sympathy of colleagues is maximized and the capacity for objectivity minimized.”

And then there is bias against other parties and factions, leading to the use of ethics charges as political weapons. Politicizing the ethics process does institutional damage, is unfair to those accused, and reinforces “the cycle of accusation. ... Making charges develops its own momentum, independent of their substance.”  And ethics charges, when they are just another political weapon, “lose their moral authority. They not only fail to control individual or institutional corruption but may even contribute to it.”

In short, it is impossible for a legislative body to act independently toward its members.

The second principle is fairness. There is often a question whether the respondent’s conduct has departed from the norms of the institution, that is, whether it is fair to single her out. When this arises, the conduct of the other legislators becomes an issue. This creates a conflict between their role as judges and their role as participants in the conduct, who feel they have to defend themselves. They find themselves in the position of either having to acknowledge their guilt or declaring their colleague innocent. The result is nearly always a finding of no violation. When it is a question of advice, attorneys who work closely with legislators almost always finds common conduct legal rather than problematic, and therefore approve it.

Third, there is accountability. Because legislators worry about how the public will view them, they tend to deal secretly with ethics matters, lessening their accountability.

Legislatures that handle their own ethics matters do not observe the principle that one should not judge in one’s own cause. "[A legislative body] is not in the best position to reach an impartial judgment on the merits, treat members with fairness, and maintain public confidence in the process.”

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959