The Big Picture

Anonymous

Wed, 07/20/2011 - 04:25

Campaign Finance

Monday evening, I learned about the serious consequences that
can result from not giving ethics commission members a clear
understanding of what government ethics is, and what it is not. 
 
The occasion was the consideration by the Democracy Fund board, which
oversees the public campaign financing program in New Haven, of a
possible violation of the program's ordinance and regulations. 
 
I am the Democracy Fund Administrator. Focused on the topics before the
board, I never stepped back and gave board members a clear idea of
where their program stands in the world of government ethics and what
government ethics means, what its goals are, what its boundaries are,
etc. I thought it would be enough to understand the role of a public
campaign financing program. It is not.

The question was whether to initiate the investigation of a
matter involving the current mayor's campaign committee for possible
late and insufficient filings of campaign finance reports. Although
there were many minor issues that confused things, the two major issues
were the possible filing of a termination report over a year after it
was due and the disclosure of a $24,000 expenditure a year and a half
after it was made (the candidate was running unopposed, so this
expenditure was a sizeable percentage of the campaign's total
expenditures). 
 
At the board meeting, the mayoral campaign committee admitted having made some
inadvertent errors, but insisted that it had the
state's permission to report the large expenditure and other receipts
and
expenditures in its termination report a year and a half after the
election, rather than including them in prior reports or amending the
latest report. 
 
However, despite ongoing
correspondence with me, the committee had not reported to me that these
receipts or
expenditures existed or asked me whether it was okay not to disclose
them until a year and a half after the election. 
 
To a government ethics professional, there would be no question
whether or not this matter should have been investigated. There may be
mitigating (and extenuating) circumstances, but it is
important to determine whether the late and insufficient filing
provisions had been violated. 
 
But to many laypersons, this sort of matter seems petty, and wasteful of
time and
effort. "Inadvertent errors" should not be investigated and fined, they
should be
forgiven. People are only human. Enforcement should be limited to
situations where there is clear intent and, especially, economic
malfeasance, that is, stealing or misusing money. A failure to report
is of little meaning. No one is hurt, public funds are not used for
personal purposes. No one is bad. 
 
The problem is that government ethics is not about being bad or having
a malicious intent. And it's not about stealing and misusing public
funds. These are primarily criminal issues. 
 
I said this at the meeting, but was not believed. It is important to
approach the issue of what government ethics is from several points of
view, because different people are struck by different things. So let
me say something a little more provocative: government ethics is
not primarily about individual misconduct. 
 
I am in the midst of reading Dennis Thompson's 1995 book, <a href="http://www.amazon.com/Ethics-Congress-Individual-Institutional-Corrupti…; target="”_blank”">Ethics
in
Congress: From Individual to Institutional Corruption</a>. I highly
recommend this book, which is less about Congress than about government
ethics. The book is still in print. When I'm done reading it, I will be
writing several blog
posts applying some of Thompson's ideas to local government ethics. 
 
Thompson's principal argument in this book is that enforcement of
government ethics laws focuses too much on individual corruption, and
too little on institutional corruption. Thompson notes right at the
beginning of chapter one, "The function of personal ethics is to make
people morally better ... Legislative ethics serves to guide the
actions of individuals, but only in their institutional roles and only
insofar as necessary for the good of the institution. Legislative
ethics uses personal ethics only as a means–not even the most important
means–to the end of institutional integrity." 
 
In other words, government ethics is not about people being bad or
doing bad things, it is about people harming their government by
acting in ways that undermine public trust in their government, such as failing to be transparent, irresponsibly handling
conflicts of interest, and breaking campaign finance rules. 
 
Institutional corruption is the principal issue especially when what an official
is doing is legal, such as accepting campaign contributions and making
campaign expenditures. Unlike stealing money or accepting gifts from
contractors, everyone does this and it is legally acceptable. And yet
it can be abused. It can be abused by failing to disclose contributions
and expenditures (a lack of transparency). It can be abused by
accepting improper contributions (e.g., large contributions from
companies seeking benefits from the government), by requiring
contributions from those seeking benefits (pay to play), and by making
improper expenditures (e.g., paying half (or twice) the fair market
value for goods purchased). 
 
These "abuses" are legal in many states and localities. In
many places they are prohibited. But they are not prohibited because
they involve economic malfeasance or even malicious intent. They are
prohibited because if everyone did these things, it would appear to the
public
that candidates were hiding information, and allowing campaigns to be,
or seem to be, about the influence of companies and individuals who are
seeking benefits from government. 
 
Thompson shows again and again how Congress's ethics committee, like
local ethics commissions across the country, approach institutional
corruption as if it were individual corruption. If there is no clear
proof of individual misconduct, ethics commissions sometimes choose not to
enforce ethics laws. They do not recognize that, although an individual
may stand before them, it is only the individual's institutional role and responsibilities that matter. 
 
It is good to feel compassion for individuals who make mistakes. And
government ethics
enforcement has places for this compassion: (i) the consideration of
mitigating circumstances in setting
the amount of a fine and (ii) staff advice to officials and candidates to help them fulfill their responsibilities. 
 
But the goal of government ethics enforcement is not to protect
individual officials, but to protect the
government institution, the political process, and the public. None of
these is served by limiting enforcement to malicious individual
misconduct. 
 
It has been irresponsible of me, as administrator, not to train the
Democracy Fund board members in more than the mechanics of the public
campaign financing program. Government ethics is far more than
mechanics. Government ethics professionals need to explain the big
picture to laypersons who become involved in government ethics. I will
be sending them this blog post to the board members as a way to start unveiling the big
picture. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
203-859-1959

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