Summer Reading: Richard Painter on Ethics Reform III

This is the third of three posts on how Richard W. Painter's recommendations for federal ethics reform in his book, Getting the Government America Deserves: How Ethics Reform Can Make a Difference (Oxford U.P., 2009), may be applied to local government ethics programs.

Lobbying
Lobbying is not as big a problem for most local governments as it is at the federal level, but when it is a problem, it often involves lobbying by high-level officials' family members. Painter recommends prohibiting such contacts at the federal level, and it would be wise to do this at the local level, as well.

Ethics laws should be focused not on lobbyists, but on government officials, because they are the ones who have a fiduciary duty to the public. Lobbyists, on the other hand, have a First Amendment right to petition the government. It is the listening, rather than the speaking, that needs to be regulated.

However, lobbyists, like other professionals, should have their own professional ethics rules. In fact, Congress recognized the need for such rules in the Honest Leadership and Open Government Act of 2007. The question is how much the government should regulate lobbyist self-regulatory organizations, as it does with broker-dealers, auditors, and other professionals. This would be a good role for a state ethics commission, even for lobbyists working primarily at the local level.

Even if such regulation is not instituted, there could be an opt-in program for lobbyists who wanted to distinguish themselves by agreeing to abide by certain ethics rules and by ethics commission jurisdiction over them. This may not even require legislation.

Painter recommends that officials be prohibited from speaking at fundraising events for private organizations that spend money to lobby the government. I would add that this should also be prohibited where the organization has a contract with or grant from the government. In fact, it is questionable whether an official should speak at or even attend a fundraising event for any organization, since this involves preferential treatment, and government endorsement, of one organization over other deserving organizations, charitable or otherwise, in the community. Participation in fundraising can also be a form of pay to play. It's best for officials to limit themselves to raising funds for the government, that is, taxes, and for themselves through campaign committees.

Painter's view is that the best way to improve lobbyists' reputation is for them to end their involvement in campaign finance, and focus on their subject matter expertise. This is the best way to extinguish their reputation as well-dressed bagmen. Doing this would also help get rid of pay to play.

Institutional Corruption
Painter talks a lot about systemic (also called "institutional") corruption, most of which is legal, but damaging in many ways. He feels that the federal ethics program does a good job with respect to officials' personal interests, but a poor job with respect to institutional corruption. This is equally true at the local level, but the types of institutional corruption differ. At the federal level, lobbyist involvement in political campaigns is the most important kind of institutional corruption. At the local level, institutional corruption more often takes the form of cronyism, "district courtesy," a failure to follow formal processes, and a culture of intimidation.

Transparency, Accountability, and Fiduciary Duty
Early on in the book, Painter observes that transparency and accountability can be competing principles. The more there is of one, the less is the perceived need for the other. For example, when officials are required to disclose gifts they receive, there is little perceived need to hold them accountable for them (in addition, this can easily lead to indirect gifts — to spouses, children, and pet charities — which do not need to be disclosed). Painter notes that in many situations where the U.S. requires disclosure, other countries more tightly control the situation, holding officials accountable.

Painter also ties these two concepts together with the concept that officials have a fiduciary duty to the citizens they represent. "If transparency and accountability fail," he wrote, "the fiduciary principles fails. Public confidence in the institutional framework fails as well. ... the best approach may be to acknowledge that fiduciary failings are a multifaceted problem and that multifaceted solutions are required to address it. Putitng all bets on a single approach—even one as important as campaign finance reform—will probably lead to disappointment. ... A realistic goal is not perfection, but that the fiduciary principle withstands these tests most of the time and in situations where it most matters."

Minutiae
Painter feels that the federal ethics program dwells too much on minutiae, for example in gift rules, while there are huge loopholes for such things as travel, not to mention campaign contributions. Too much ethics program activity can involve such minutiae. This is especially true when an ethics program handles campaign finance in addition to conflicts of interest. Because campaign finance is all about minutiae, it can use up an inordinate amount of an ethics program's limited resources. Annual disclosure issues can also take up too many resources, especially with respect to enforcement. Equally the investigation and enforcement of minor matters can be a big waste of time that could better be spent on education, outreach, and advice.

Some Good Quotes
"To the extent required to uphold the fiduciary principle in government, two-career couples should also be interdependent in matters of ethics." (p. 44)

"Debate over ethics rules for the 'revolving door' goes to the heart of what type of government we want—one like France, run principally by career bureaucrats, or one like the United States, where many senior officials have the perspective and experience of the private sector, but sometimes also the burden of appearing to be beholden to the private sector." (p. 47)

"Spending money on the Office of Government Ethics and on agency ethics programs should save taxpayers money in the long run." (p. 76)

"Each new wave of 'lobbying reform' gives lobbyists higher status because they purport to adhere to more stringent rules." (p. 185)

"Political parties should acknowledge that they share responsibility for a political system that allows and even encourages departures from the fiduciary principle. Ethics is, instead, viewed by both parties as the other party's problem. Ethics has thus become a political weapon that is discussed principally in the aftermath of scandals. Each party seeks to excuse the conduct of its own members while accusing the other party of being unethical. ... Ethics reform will meet the same fate as other politicized issues—slow, contentious progress, if any, and solutions aimed at appearance rather than substance—if leaders in both political parties do not treat the subject seriously. ... Admittedly, partisan attack is better than mutual cover-up" (p. 268-269)

Part 1 of this three-part post
Part 2 of this three-part post

Robert Wechsler
Director of Research-Retired, City Ethics

---