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Two Perspectives on Gift-Giving
Thursday, December 10th, 2009
Robert Wechsler
I'm back from the Council on Governmental Ethics Laws (COGEL)
conference, and I will be sharing some valuable information from the
talks and panels I attended.
In a panel on gifts provisions in ethics codes, the panel consisted not only of the usual government ethics professionals, but also a lawyer who advises and defends lobbyists and those who do business with governments. One difference in their perspectives stood out.
Ethics professionals, and the gift provisions they write, generally look at gifts in terms of persons trying to influence officials. Typical language includes the phrase "tends to influence an official." The assumption is that officials are good people being tempted by those who have something to gain by influencing government officials.
Lobbyists and those who do business with local governments look at gifts in terms of pay-to-play. Their view is that officials explicitly or implicitly require gifts — whether directly to the officials and their families, or indirectly though PACs, favorite charities, and contributions to candidate and party committees. The assumption is that businesspeople are good people being tempted by officials seeking to use their power and position to help themselves and those who matter to them.
One side sees such transactions primarily in terms of temptation, while the other side sees such transactions in terms of the cost of doing business.
What is so strange is that, although those who write ethics codes are most concerned about companies trying to influence officials, most ethics codes don't place any responsibility on those doing business with local governments. This makes no sense. If businesspeople are the bad guys, then they should at least share the responsibility for disclosure and for keeping to the limits.
These requirements are sometimes placed on lobbyists, and sometimes the word "lobbyist" includes the companies lobbyists represent. But generally, such companies get in trouble only where gifts can be proved to be bribes.
Not only is it difficult to prove this, but it still leaves open gifts to favorite charities as well as contributions to campaigns, PACs, and party committees.
Similarly, pay-to-play laws, which are usually criminal, tend to require a showing that officials favor companies that give them what they ask for. These laws don't see officials as innocents being tempted, but as individuals abusing their positions and power. But these laws don't generally appear in ethics codes.
What is needed in writing ethics codes and regulations is a double perspective. Both parties to any transaction should share the blame and the responsibility. Both parties should know that, if they're caught, there will be serious consequences: large fines, voided contracts, loss of position, a suspension of doing business.
What is also needed is an ethics environment where such gifts are not only illegal, but unacceptable. An environment where companies and officials can safely say No, and report companies and officials who offer or demand something they know is illegal.
Robert Wechsler
Director of Research-Retired, City Ethics
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In a panel on gifts provisions in ethics codes, the panel consisted not only of the usual government ethics professionals, but also a lawyer who advises and defends lobbyists and those who do business with governments. One difference in their perspectives stood out.
Ethics professionals, and the gift provisions they write, generally look at gifts in terms of persons trying to influence officials. Typical language includes the phrase "tends to influence an official." The assumption is that officials are good people being tempted by those who have something to gain by influencing government officials.
Lobbyists and those who do business with local governments look at gifts in terms of pay-to-play. Their view is that officials explicitly or implicitly require gifts — whether directly to the officials and their families, or indirectly though PACs, favorite charities, and contributions to candidate and party committees. The assumption is that businesspeople are good people being tempted by officials seeking to use their power and position to help themselves and those who matter to them.
One side sees such transactions primarily in terms of temptation, while the other side sees such transactions in terms of the cost of doing business.
What is so strange is that, although those who write ethics codes are most concerned about companies trying to influence officials, most ethics codes don't place any responsibility on those doing business with local governments. This makes no sense. If businesspeople are the bad guys, then they should at least share the responsibility for disclosure and for keeping to the limits.
These requirements are sometimes placed on lobbyists, and sometimes the word "lobbyist" includes the companies lobbyists represent. But generally, such companies get in trouble only where gifts can be proved to be bribes.
Not only is it difficult to prove this, but it still leaves open gifts to favorite charities as well as contributions to campaigns, PACs, and party committees.
Similarly, pay-to-play laws, which are usually criminal, tend to require a showing that officials favor companies that give them what they ask for. These laws don't see officials as innocents being tempted, but as individuals abusing their positions and power. But these laws don't generally appear in ethics codes.
What is needed in writing ethics codes and regulations is a double perspective. Both parties to any transaction should share the blame and the responsibility. Both parties should know that, if they're caught, there will be serious consequences: large fines, voided contracts, loss of position, a suspension of doing business.
What is also needed is an ethics environment where such gifts are not only illegal, but unacceptable. An environment where companies and officials can safely say No, and report companies and officials who offer or demand something they know is illegal.
Robert Wechsler
Director of Research-Retired, City Ethics
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