Institutional Corruption Conference I: Duplicitous Exclusion

On Saturday, I attended a one-day conference on Institutional Corruption sponsored by the Safra Center for Ethics at Harvard University (videos of it will eventually appear here). Although local government was scarcely mentioned (there was one image of a painting that portrayed the 1930s machine in Kansas City, MO), many ideas that were discussed are applicable to local government ethics.

I will start with the ideas of Mark Warren, a professor at the University of British Columbia, not because he was the first or best speaker, but because, on the train to Boston, I read the online draft of his 2005 paper "Democracy Against Corruption" and found it fascinating. His talk at the conference presented some of the same ideas.

Vertical and Horizontal Accountability
The key term of the paper and talk was "duplicitous exclusion," which Warren equates with corruption. Warren starts from the premise, from democratic theory, that "the central forces in political decision-making should be accountable representation and public justification." In other words, our government representatives should be accountable to us, and a principal way for this to occur is for them to publicly justify their decisions and their actions.

The problem is that "vertical accountability," which is done primarily by citizens voting, does not do a good job of controlling corruption. A principal reason for this is that corruption is done secretly. If you don't know about something, you can't do anything about it.

In addition, "no citizen has sufficient interest in combating corruption to make the investment in doing so." And when the institution is corrupt (that is, when there is a poor ethics environment) and all candidates go along with it, the electorate is not given sufficient choice to make their representatives accountable.

This is why citizens must depend on other institutions to signal to them the reliability of governing institutions. This places the principal burden on "horizontal accountability," including government ethics programs.

The Limitations of the Office-Based Conception of Corruption
The problem Warren points out that is the most serious obstacle to recognizing the importance of institutional corruption is the limitations of our "office-based conception" of corruption, that is, our view that corruption consists primarily of the abuse of public office for private gain. This view is at the heart of government ethics. Warren notes that, although this view tends to be effective in an administrative context, where offices have well-defined purposes and norms of conduct, it is not so effective in a political context, where the most important ethical question is the distribution of influences and the norms relating to how this is done.

What is the alternative to the office-based conception of corruption? A conception based on "the integrity of democratic processes," including the process of creating rules and norms (the unwritten rules of a poor ethics environment undermine this process). According to Warren, it is these processes that are being protected by an ethics program, not the integrity of offices or individuals.

What does it mean to protect the integrity of democratic processes? To answer this, we should recognize that democratic processes are based on the belief that every individual has an equal moral value and is, therefore, entitled to participate in governmental matters on an equal basis, to (at least potentially) equally affect collective decisions. Warren calls this the "empowered inclusion of those affected in collective decisions and actions."

Duplicitous Exclusion
So, with respect to democratic processes, political corruption is not just individual officials putting their personal interest ahead of the public interest. Corruption is "unjustifiable exclusion ... marked by normative duplicity," the long way of saying "duplicitous exclusion." The corrupt act, according to this approach, is excluding people from the democratic process in a way that cannot be justified, doing it in secrecy, and then saying that you favor inclusion, that is, the various forms of citizen participation in government.

Although I don't think this description of corruption covers all sorts of ethical misconduct in local government, it is the best description I have ever seen of what went on in my own town several years ago, during the events that pulled me into the world of local government ethics. The ethical misconduct that occurred was accompanied, and protected, by a deft combination of duplicity and exclusion.

One thing nice about Warren's formulation is that it shows how important transparency is to government ethics, even though the two are usually handled by separate agencies, according to separate laws and at separate levels of government. It is rare that a poor ethics environment does not feature the kinds of secrecy that transparency laws are intended to prevent. Secrecy is the easy way to prevent the discovery of ethical misconduct as it occurs. And secrecy continues to be effective after the fact, as well, popularly known as a cover-up.

Corrupting the Value of Inclusion
According to Warren, the value of inclusion, so important to democracy, is not openly denied by officials — no one argues against inclusion, at least not publicly. Rather, the value of inclusion, of participation by all citizens affected by government decisions, itself is corrupted. This corruption lies in the fact that citizens cannot participate effectively when they lack the necessary information, and especially when the information that is given to the public, especially the arguments made in justification of decisions, is false. This means that the entire discussion is false, and that citizens' views are not being taken into account. Citizens are instead seen by officials only as an obstacle to their self-interest, not as the people the official is supposed to represent.

We tend to talk about how our representatives are entrusted with making decisions for our community. But what we too rarely add is that they "are also entrusted with the integrity of the processes through which they make their decisions."

Exclusion is not something that occurs only through corruption. Those who lose an election are relatively excluded from representation. But that is part of the political process, not the result of any corruption of the political process. Corruption of representation occurs (1) when voters effectively sell their votes in return for patronage, so that patronage replaces representation; (2) when the public rationales for decisions are not the real reasons, especially when those reasons involve money and personal benefit (people can only know about money and personal benefit if there is an effective ethics program); and (3) when, because there is systemic corruption, there is no way to punish the corrupt by voting, even if the information is available (this can only be done by ethics enforcement).

Warren adds a fourth kind of loss of representation, which can exist even where there is both sufficient information and ethics enforcement:  the use of votes to further group interests. That is, individuals vote for one of their own, even if he is not very trustworthy and even when there are more trustworthy candidates running. This is not only about ethnic and racial groups. It also includes the situation where a corrupt representative brings home the bacon, that is, pulls federal, state, and city money into the district. Voting becomes an act of self-interest in what is seen as a zero-sum game involving government resources. The poster boy for this is John Murtha, former Pennsylvania congressional representative.

What differentiates the exclusion caused by corruption, Warren argues, is the deceit:  "corruption is the form of exclusion enabled by deceit." Ann Tenbrunsel, co-author of Blind Spots (see my blog posts on this book) and a member of the second panel of the conference, would likely argue that it isn't just deceit that leads to corruption, but also self-deceit or, at least, our inability to recognize or acknowledge our ethical misconduct.

That is why, although I like the term "duplicitous exclusion," it is important to recognize that sometimes the duplicity is not between an official's "true" reasons and the reasons that she gives, but rather lies within the official and yet outside the official's awareness. And most of the time, the public cannot know which sort of duplicity it is.

Intent and Ethics Advice in Government Ethics
This is why intent and motive matter little in government ethics. What matters is relationships and obligations. If an official has a special relationship with someone involved in a matter before her, it must be dealt with responsibly. Since the official is either (1) in denial about the relationship's effect both on her and on the public's view of her conduct, or (2) consciously wants to benefit the individual or entity with which she has a special relationship, the official is usually unwilling to withdraw from the matter and, in any event, is not the best person to make the decision how to deal with the relationship.

This is why independent, professional ethics advice is the most important element of government ethics. An official may not be willing or able to handle a conflict situation responsibly, or even recognize that there is a conflict. But an official can identify a special relationship, whether it be with a relative, a business associate, or a substantial contributor. If the official were to be required to seek ethics advice regarding a special relationship when a matter arose, and the official failed to do so, then the conduct would clearly be unethical, because the deceit (hiding the relationship) would clearly be conscious. In government ethics, the combination of (1) language such as "would reasonably influence" or "affects the impartial judgment" and (2) placing all the responsibility on the official, actually enables both kinds of duplicity. Requiring officials to seek ethics advice is a way to prevent duplicity by making the responsible handling of a conflict situation so simple, no excuse, whether believed or not, can be made.

Warren provides a fresh perspective on the role of government ethics programs. An ethics program is not just a way to ensure public trust, but also a way to create inclusion by requiring the disclosure and responsible handling of conflicts. If a conflict is handled correctly, this could lead to the visibility and debate of conflicting relationships, making them "a legitimate part of democratic discourse." This can be done in public council and board meetings, as well as at ethics commission meetings. And the provision of independent, professional ethics advice gives this debate a solid, trustworthy foundation, which cannot be provided by a city or county attorney's advice or by the apparently duplicitous protestations of officials and their colleagues.

Making Integrity a Valuable Resource
Warren points out that an important goal of government ethics programs is making integrity (including playing within the rules) a valuable resource. This gives officials an incentive to develop their reputation for integrity within the requirements of a good ethics program. Without a good ethics program, a reputation can be developed as a deceptive ploy. An official with a well-deserved reputation for integrity will be seen as trustworthy in the sense that she is open to influence from any citizen or citizen group.

Warren's Other Discussion Topics
Warren's article also contains two other fascinating discussions, which are worth reading. The first involves how to distinguish citizen groups that facilitate corruption from those that expose and fight corruption, not only as a principal goal (such as Common Cause), but also to promote inclusion, that is, to get their own views heard (such as an anti-development group).

The second discussion involves decentralization. Warren notes that, contrary to the argument that government closest to the public is best, corruption in the U.S. as well as in Europe is greater at the local level. He gives four reasons for why this is so.

Finally, Warren finds the origin of corruption in the driving underground of the more overt political violence and coercion of pre-democratic governments. This is why corruption is such a problem in transitional democracies. In fact, corruption can be found anywhere that democratization is incomplete, which is pretty much everywhere.

Robert Wechsler
Director of Research-Retired, City Ethics

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