CA Gov. Brown Points to 50-Year-Old Essay To Defend His Veto of Ethics Reforms

This week, California governor Jerry Brown had to go back fifty years to find someone who agreed with his view of government ethics reform. According to an article in the San Diego Mercury-News, in vetoing ethics reforms that "sought to limit the types of gifts politicians can accept and force lawmakers to disclose the names of groups that bankroll their travel junkets," Brown "referred lawmakers to an article written by one of his former law professors [Bayless Manning] that was published by the Federal Bar Journal in 1964: "The Purity Potlatch: An Essay on Conflicts of Interest, American Government and Moral Escalation." According to the article, the essay "argued that there was no evidence that new ethics rules imposed at the time were having any effect on public officials' conduct."

I could not find Manning's essay online, or the book based on it, but I did discover that it has been cited primarily by those opposed to conflicts of interest laws and programs. It is difficult to show the effects of ethics laws on officials' conduct, and American academics have made little effort to investigate this question. In any event, ethics laws in the 1960s were minimal, and their enforcement was even less. How effective they may or may not have been has little to do with the reforms that Brown vetoed.

From the quotes from and references to Manning's essay that I have found online, the principal problem with the essay appears to be that it seeks to condemn government ethics laws and programs rather than to call for educating people about how ethics programs can be most fairly and effectively administered. For example, he wrote, "In the public mind, to receive a gift or have a conflict of interest has by now been equated with venality; a government official in a position of conflicting interests is a kind of crook." This says nothing about ethics laws or programs, except to the extent some laws wrongly make it illegal to have a conflict of interest or have gift provisions that apply beyond restricted sources. What it does say is that ethics laws need to be drafted with input by those who understand government ethics and that they need to be administered by independent professionals who can gain the public's trust.

As for gifts (Brown vetoed a reduction in the limit on gifts that could be accepted by Californa officials), it is impossible to expect any ordinary citizen to find the acceptance of gifts from those seeking special benefits from government as anything less than venal. This has nothing to do with poor laws or media-created scandals.

It's interesting that Manning uses the term "potlatch" in the title of his book. According to Wikipedia, this gift-giving feast among certain native American tribes was, like politics, mostly about power, face, and the reciprocity of giving. And like politics in recent years, after the coming of the white man the gift giving in potlatches became inflated and, therefore, harmful. Like political gift giving, the potlatch was made illegal, but for different reasons: because it was considered wasteful, uncivilized, and unChristian. Laws against the acceptance of gifts by government officials go back even further in time, to the founding of the U.S. Restrictions and prosecutions relating to gifts have expanded over the last few decades, as government potlatches have been increasingly seen as inappropriate and unethical, because they go against the idea of government officials as fiduciaries who are supposed to consider only the public good.

The problem with this increase of restrictions and enforcement is that the focus is on individuals, whereas the potlatch in many governments is, like the original, a group thing, part of the organizational culture. Where this is the case, it seems unfair to go after certain individuals, often for partisan reasons or via sting operations.

But this does not mean that there should be no enforcement. It only means that the emphasis needs to be on the creation of professional and independent ethics programs, without partisan goals and sting operations, and with the authority to train, advise, and initiate investigations into group conduct that undermines public trust in a government.

What we need is an open discussion of how Americans feel about restricted sources making sizeable gifts to government officials, and a study of how much citizens actually differentiate between campaign contributions, contributions to parties, independent spending, indirect gifts to family members and businesses, and gifts made directly to officials. Brown's veto of ethics reforms might be a good occasion for such a discussion. Anyone who wants to take part in it may feel free to comment on this blog post.

Also see the following blog posts and section of my book Local Government Ethics Programs:

Gifts Section
The Gift
Two Perspectives on Gift-Giving
The Philadelphia Ethics Board's Proposed Gift Regulation
Do Gifts Establish Subordination?

Robert Wechsler
Director of Research-Retired, City Ethics

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