Situational Ethics Is Inappropriate in a Government Ethics Context

The term "situational ethics" derives from a particular theory of a priest named Joseph Fletcher, but it is more generally understood to mean dealing with ethics in terms of a particular situation and particular goals (ends-oriented ethics). In other words, it is ethics that allows for different rules in different circumstances, but also for self-serving, sometimes hypocritical, ethical statements and actions.

Yesterday, Ruth Marcus of the Washington Post did a column about situational ethics and campaign finance laws. She noted that, in 2000, U. S. Senate minority leader Mitch McConnell said in reference to regulating 527 organizations (which were being employed primarily by Democrats), "What we ought to do is broaden the disclosure to include at least labor unions and tax-exempt business associations and trial lawyers so that you include the major political players in America. Why would a little disclosure be better than a lot of disclosure?"

Now, when McConnell's party is using 501(c)(4) and other organizations, he opposes disclosure of their donors.

Because they often adapt their views to the situation and their current needs, how much disclosure a politician favors is less important than how he or she approaches the campaign finance laws that exist today. Many show little concern for the spirit of these ethics laws, nor do they seem to care if, in the end, they have to pay hefty fines. They certainly don't care whether their actions undermine trust in government, any more than they care about the deleterious effects of attack advertising.

Few elected officials seem to understand, or act as if they recognize, that ethics laws are different from other laws, in that they provide minimum requirements and their loopholes are not to be taken advantage of. Marcus doesn't seem to understand this, either:

[B]oth parties and their allies have demonstrated a hardheaded willingness to exploit and stretch existing campaign finance laws. To expect otherwise is to expect lions not to eat zebras when the opportunity arises. The ethics — and the expressions of ethical outrage — are purely situational.

Situational ethics, ethics that focuses on the ends, is not what government ethics is about. Government ethics is rules-based ethics. In rules-based ethics, one is supposed to employ the categorical imperative, that is, ask oneself if you would make the principle on which you act apply to everyone (see my blog post on the categorical imperative). Situational ethics is just the opposite; it assumes that principles apply or don't apply depending on who is in what situation. For example, campaign finance disclosure is important when the opposition isn't disclosing enough, but is unconstitutional when you or your supporters have something to hide.

Yes, we cannot expect lions not to eat zebras, but politicians are human, and humans can transcend their personal desires. That is an important assumption behind ethics.

We should not lose sight of the principal goal of government ethics:  preserving citizens' trust in government so that they will participate and a true democracy can function. If one didn't know better, one would think, looking at the way they run and fund their campaigns, that many politicians actually want the public not to trust them.

The fact is that it would be easier for politicians if most citizens did not participate, and there was not a true democracy. You will recall that our founding fathers, in their great wisdom, chose to have senators elected by state representatives, not directly by the public. And presidents are still selected by an electoral college, which can select a candidate with fewer votes than another. Politicians have tried to limit citizen participation since our nation's founding.

But when it comes to laws, these politicians are not lions. They and their advisers are foxes. No one can stop a lion from killing its prey, but many foxes are clever enough to understand that it is not always appropriate to be foxy. An important, rarely stated goal of government ethics is to get enough of them to see that foxiness is inappropriate to government ethics, and being foxy in this context undermines trust in government.

Those who support government ethics could point out that, just because disclosure is not expressly required in a particular situation, or the regulatory agency lacks either the manpower or the will to enforce the law, this does not mean that organizations cannot or should not make disclosures. In fact, many do. The more who are encouraged to disclose even when they do not have to, the more it will become clear that those who do not disclose have something to hide. This is a cost of non-disclosure that many organizations will want to forgo.

Some will bluster about privacy, but in most cases — such as the Chamber of Commerce, whose members are companies — this is ridiculous. Shame does work most of the time, and when it doesn't, people can at least differentiate between those who can be trusted and those who consciously make the decision to place themselves beyond trust.

What is true of organizations can also be true of government officials. In the long run, most of the officials who are truly beyond trust go too far. An important goal of government ethics is to create a sufficiently healthy ethical environment so that there is the positive communal support required to prevent these officials from getting away with their misconduct at the ethics stage, before they go too far and commit crimes. Without communal fear or indifference, no one can get away with acting unethically, whatever the situation, unless they are very foxy indeed.

Robert Wechsler
Director of Research-Retired, City Ethics

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