Ethics in Congress IV - The Damaging Individual Corruption Paradigm (Summer Reading)

In his book Ethics in Congress: From Individual to Institutional Corruption, Dennis Thompson discusses two tendencies that lead to the overlooking or obscuring of institutional corruption’s significance. Those who bring or judge charges tend to individualize misconduct. This limits the wrongdoing to the individual who is charged, exonerating other members of the legislative body, even if they are involved in similar conduct, and ignoring the local government's ethics environment.

Those who are charged, and their defenders, tend to do exactly the opposite. They institutionalize the misconduct. They emphasize the institutional aspects of the alleged misconduct in order to excuse the conduct ("everyone does it"), or they justify the conduct as an institutional privilege. They effectively argue that their conduct is less corrupt than it may seem, because it is common and acceptable inside the government. This sends the message that institutional corruption is not as serious as individual corruption.

The fact is that most misconduct has elements of both individual and institutional corruption. Sometimes the elements are mixed in one act, sometimes multiple acts by one individual separately fit one or the other sort of corruption. It is important to recognize this, to distinguish the elements, and to prevent the tactical attempts to individualize or institutionalize misconduct.

Individual corruption occurs “when the gain is personal, the service undeserved, and the connection based on individual motive.” Institutional corruption occurs when “the gain is political, the service procedurally improper, and the connection based on institutional tendencies.” One could create a little game pairing these elements, like those faces split in half that turn so that half of one face is paired with half of another.

Of the two tendencies, the tendency to individualize misconduct is the more damaging, I think. One problem that exacerbates this tendency is that bribery is the essential act of individual corruption. This makes criminal law the paradigm for enforcing individual misconduct. Because of this, government ethics enforcement gets caught up with concepts of criminal law such as knowledge, motive, and intent.

But government ethics offers a more simple, efficient, and less penalizing approach to misconduct, emphasizing training and advice rather than enforcement. Government ethics advice and enforcement need not deal with intent, or with motive, and or with quid pro quos. Government ethics is well designed to deal with institutional corruption, but this is lost in its emphasis on the individual.

Also problematic is the fact that the concept of innocent and guilty has been foisted on government ethics, even though it's really about dealing responsibly with conflicts of interest. Officials too often seek exoneration just as if they had been accused of crimes. The news media treats ethics allegations no differently than criminal allegations. In many jurisdictions, prosecutors become involved and violations must be proved beyond a reasonable doubt. Elsewhere, former prosecutors are often involved.

What is lost in the emphasis on the individual is the culture in which individuals act. In a poor ethics environment, the most common relationships can be the worst. The misconduct that becomes the subject of ethics proceedings is often not very indicative of the government's true problems. Or it is only the tip of the iceberg.

Either way, ethics allegations often turn into expensive battles where only the taxpayer is seriously penalized and, too often, there is a loss of confidence not only in the officials involved, but also in the ethics process

It is so hard to get it across to officials, the media, and the public that government ethics is only about an official's institutional roles, the good of the institution, and the democratic process. It is not about personal ethics, but about the institution's integrity. An official can protect the institution's integrity by asking for advice about gray-area conduct, disclosing more rather than less, designing her office to prevent the mixing of legislative and campaign functions, not seeking out or listening to the clever tactics of advisers who have no interest in institutional integrity, and not trying to intervene where she does not belong. None of these practical solutions has a hint of being good or bad. It's all about acting professionally and responsibly, about helping to create an institution that prizes responsible behavior, and being fair, independent, and accountable.

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959