Ethics in Congress III - Independent Advice and Enforcement (Summer Reading)

<br>Looking at government ethics through the appearance standard, as
Dennis Thompson did in his book <b><a href="http://www.amazon.com/Ethics-Congress-Individual-Institutional-Corrupti…; target="”_blank”">Ethics in Congress: From Individual to Institutional Corruption</a></b>,
reveals the great importance of independence to ethics advice and
enforcement. No one is in a worse position to see appearances of
impropriety than someone who considers his motives to be good, and
his goals to be of utmost importance. This is not the mark of a
corrupt individual, but rather a common human characteristic. A
legislator not only has an obligation to respect people's reasonable
reactions to her conduct, but equally has an obligation to recognize
how hard it is for her and her colleagues to know how people
will react to what they feel is good or, at least, legal conduct.<br>
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Recognizing this, it is a legislator's obligation to let someone
else determine whether particular conduct creates an appearance of
impropriety and, therefore, should not be done. This is why
independent ethics advisers are so important to an ethics program.
And it is equally important to recognize that someone else should be
enforcing these rules of conduct, that is, someone who sees from the
same position as the public. The legislator's point of view is not
what is important in government ethics.<br>
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Taking another approach, Thompson argues that an appearance standard
can work effectively and fairly only if it is interpreted and
applied by individuals who have no personal or political interest in
a matter. He asks, "How can [self-enforcing committees] claim to
judge an individual conflict of interest when they themselves stand
in a position of institutional conflict of interest?"<br>
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Former officials often serve on ethics commissions. They may not currently be in office, but they still stand in an position of institutional conflict of interest. They see ethics issues from an official's point of view. This means that they see what others might consider improper conduct as not only the way things are done, but what they did themselves or accepted in others. They are also concerned for their party, for their former colleagues, and for their possible return to office. Thus, former officials, like present officials, have a political interest in ethics matters and should be excluded from ethics commissions. (This is my own extension of Thompson's argument.)<br>
<br>
Thompson also applies his three legislative principles to the idea
of having a legislative body enforce ethics laws against its own
members. First, he notes that in a legislative body there is strong
collegial interdependence, that is, legislators depend on each other
to get their jobs done. It is difficult both to judge colleagues
objectively and to act on judgments even when they have been
objectively made.<br>
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In addition, a member implicated in institutional corruption "is
seen as simply doing what the job requires or at least permits.
Under such circumstances, the sympathy of colleagues is maximized
and the capacity for objectivity minimized.”<br>
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And then there is bias against other parties and factions, leading
to the use of ethics charges as political weapons. Politicizing the
ethics process does institutional damage, is unfair to those
accused, and reinforces “the cycle of accusation. ... Making charges
develops its own momentum, independent of their substance.” 
And ethics charges, when they are just another political weapon,
“lose their moral authority. They not only fail to control
individual or institutional corruption but may even contribute to
it.”<br>
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In short, it is impossible for a legislative body to act
independently toward its members.<br>
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The second principle is fairness. There is often a question whether
the respondent’s conduct has departed from the norms of the
institution, that is, whether it is fair to single her out. When
this arises, the conduct of the other legislators becomes an issue.
This creates a conflict between their role as judges and their
role as participants in the conduct, who feel they have to defend
themselves. They find themselves in the position of either having to
acknowledge their guilt or declaring their colleague innocent. The
result is nearly always a finding of no violation. When it is a
question of advice, attorneys who work closely with legislators
almost always finds common conduct legal rather than problematic, and therefore approve it.<br>
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Third, there is accountability. Because legislators worry about how
the public will view them, they tend to deal secretly with ethics
matters, lessening their accountability.<br>
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Legislatures that handle their own ethics matters do not observe the
principle that one should not judge in one’s own cause. "[A
legislative body] is not in the best position to reach an impartial
judgment on the merits, treat members with fairness, and maintain
public confidence in the process.”<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
203-859-1959