Ethics in Congress I - Institutional Corruption (Summer Reading)

My second volume of summer reading is a classic, Dennis F. Thompson's Ethics in Congress: From Individual to Institutional Corruption (1995). Despite the book's title, Thompson (a professor at Harvard) has a great deal to say about government ethics that is equally applicable to city and county legislators.

The central thesis of the book (but far from its only fresh and valuable idea) is that the government ethics process largely ignores institutional corruption in favor of individual corruption, and that this greatly limits government ethics programs.

What is institutional corruption? Here's how Thompson describes it in his introduction:

[L]ike all forms of corruption, the institutional kind involves the improper use of public office for private purposes. But unlike individual corruption, it encompasses conduct that under certain conditions is a necessary or even desirable part of institutional duties. ... What makes the conduct improper is institutional in the sense that it violates principles that promote the distinctive purposes of the institution. It is still individuals who are the agents of institutional corruption and individuals who should be held accountable for it, but their actions implicate the institution in a way that the actions of the agents of individual corruption do not.
    Legislative corruption is institutional in so far as the gain a [legislator] receives is political rather than personal, the service the [legislator] provides is procedurally improper, and the connection between the gain and the service has a tendency to damage the legislature or the democratic process.

What this complex description needs is a good example. A council member intervenes in a zoning board matter on behalf of a large campaign contributor. Helping a constituent is one of a council member's roles and, unless the city or county has a public financing program, so is raising campaign contributions. The only individual corruption possible here would be an express promise that the council member would intervene if given a large contribution. But this would be bribery, a crime that is almost impossible to prove unless someone's phone is tapped. In any event, bribery is not something government ethics deals with.

Looked at in terms of institutional corruption, the situation looks very different. Reread the last sentence of the quotation above. This sets out the three aspects of institutional corruption. The council member's gain is clearly political, not personal. That's the easy part. But is the service procedurally improper? In other words, is it one of a council member's roles to intervene in a zoning board matter? No, it is not. And it is arguable that the connection between this improper service and the proper political gain makes it appear to the public, if it knew, that if you have the money and the moxie, you can get a council member to intervene in a proceeding where the council has no role.

A council member may have no place intervening in a zoning proceeding, but he probably has leverage. He may be able to affect a zoning board member's re-appointment or re-nomination for election. He may be able to change zoning laws in ways that certain zoning board members may find damaging. He may be able to limit the zoning board's budget. Or he may be able to use his role in the community to help create public opposition to matters before the zoning board. There are all sorts of things a council member can threaten, openly or tacitly, in asking zoning board members to give a constituent a variance. And council members often have more leverage elsewhere in local government.

In fact, in some municipalities, zoning board members, and others, expect pressure from council members. It's not considered something inappropriate, just politics, the way things are done, the deals that have to be made. This is, in fact, a principal feature of much institutional corruption:  inside the system, it isn't seen as corruption. It isn't even questioned. It's simply done.

And yet this sort of conduct is much like acts of individual corruption. It involves the abuse of public office for private purposes. It involves favoritism. It involves secrecy. It requires the tacit acceptance of others. But unlike most individual corruption, everyone does it. "That a practice is widespread makes it worse. Rather than being an excuse, the plea that everyone is doing it should strengthen the case against an individual member charged with improper conduct.”

This is the radical heart of Thompson's book:  that what legislators believe is acceptable, because it is legal and even common, is actually even worse, for the very same reasons:  it is legal and it is common. Compared to individual misconduct, institutional misconduct is systematic and pervasive. Someone who steals a few thousand dollars out of the till in no way harms the reputation of a local government or undermines our democratic ways. But a community's leaders who use their power to help wealthy contributors in underhanded, inappropriate ways, whether or not the leaders themselves receive a direct financial benefit, this makes people lose trust in their local government.

It doesn't matter whether the result is a variance, a contract, or a job for somebody's daughter. This sort of favoritism is damaging, and is too often outside of an ethics commission's jurisdiction because it does not fit the usual "financial benefit to an official" language of ethics codes.

Although Thompson wrote his book in 1995, the concept of institutional corruption is only recently coming into its own in terms of academic research. This is the third year of a large five-year research project at the Edmond J. Safra Center for Ethics at Harvard, which Thompson helped found. The Center's director, Lawrence Lessig, has been focusing on this concept in recent lectures, mostly with respect to the federal government. So, it's a good time to apply the concept to local governments, as well.

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959