Summer Reading: Richard Painter on Ethics Reform III

Anonymous

Thu, 09/12/2013 - 03:58

Book Reviews

This is the third of three posts on how Richard W. Painter's recommendations for federal ethics reform in his book, <a href="http://www.amazon.com/Getting-Government-America-Deserves-Difference/dp…; target="”_blank”">Getting
the Government America Deserves: How Ethics Reform Can Make a
Difference</a> (Oxford U.P., 2009), may be applied to local government ethics programs. 
 
Lobbying 
Lobbying is not as big a problem for most local governments as it is at the federal level, but
when it is a problem, it often involves lobbying by high-level
officials' family members. Painter recommends prohibiting such
contacts at the federal level, and it would be wise to do this at
the local level, as well. 
 
Ethics laws should be focused not on lobbyists, but on government
officials, because they are the ones who have a fiduciary duty to
the public. Lobbyists, on the other hand, have a First Amendment
right to petition the government. It is the listening, rather than
the speaking, that needs to be regulated.

However, lobbyists, like other professionals, should have their own professional ethics rules.
In fact, Congress recognized the need for such rules in the Honest
Leadership and Open Government Act of 2007. The question is how much
the government should regulate lobbyist self-regulatory
organizations, as it does with broker-dealers, auditors, and other
professionals. This would be a good role for a state ethics
commission, even for lobbyists working primarily at the local level. 
 
Even if such regulation is not instituted, there could be an opt-in
program for lobbyists who wanted to distinguish themselves by
agreeing to abide by certain ethics rules and by ethics commission
jurisdiction over them. This may not even require legislation. 
 
Painter recommends that officials be prohibited from speaking at
fundraising events for private organizations that spend money to
lobby the government. I would add that this should also be
prohibited where the organization has a contract with or grant from
the government. In fact, it is questionable whether an official
should speak at or even attend a fundraising event for any
organization, since this involves preferential treatment, and
government endorsement, of one organization over other deserving
organizations, charitable or otherwise, in the community.
Participation in fundraising can also be a form of pay to play. It's
best for officials to limit themselves to raising funds for the
government, that is, taxes, and for themselves through campaign committees. 
 
Painter's view is that the best way to improve lobbyists' reputation
is for them to end their involvement in campaign finance, and focus
on their subject matter expertise. This is the best way to
extinguish their reputation as well-dressed bagmen. Doing this would
also help get rid of pay to play. 
 
Institutional Corruption 
Painter talks a lot about systemic (also called
"institutional") corruption, most of which is legal, but damaging in
many ways. He feels that the federal ethics program does a good job
with respect to officials' personal interests, but a poor job with
respect to institutional corruption. This is equally true at the
local level, but the types of institutional corruption differ. At
the federal level, lobbyist involvement in political campaigns is
the most important kind of institutional corruption. At the local
level, institutional corruption more often takes the form of
cronyism, "district courtesy," a failure to follow formal processes,
and a culture of intimidation. 
 
Transparency, Accountability, and Fiduciary Duty 
Early on in the book, Painter observes that transparency and
accountability can be competing principles. The more there is of
one, the less is the perceived need for the other. For example, when
officials are required to disclose gifts they receive, there is
little perceived need to hold them accountable for them (in
addition, this can easily lead to indirect gifts — to spouses,
children, and pet charities — which do not need to be disclosed).
Painter notes that in many situations where the U.S. requires
disclosure, other countries more tightly control the situation,
holding officials accountable. 
 
Painter also ties these two concepts together with the concept that
officials have a fiduciary duty to the citizens they represent. "If
transparency and accountability fail," he wrote, "the fiduciary
principles fails. Public confidence in the institutional framework
fails as well. ... the best approach may be to acknowledge that
fiduciary failings are a multifaceted problem and that multifaceted
solutions are required to address it. Putitng all bets on a single
approach—even one as important as campaign finance reform—will
probably lead to disappointment. ... A realistic goal is not
perfection, but that the fiduciary principle withstands these tests
most of the time and in situations where it most matters." 
 
Minutiae 
Painter feels that the federal ethics program dwells too much on
minutiae, for example in gift rules, while there are huge loopholes
for such things as travel, not to mention campaign contributions.
Too much ethics program activity can involve such minutiae. This is
especially true when an ethics program handles campaign finance in
addition to conflicts of interest. Because campaign finance is all
about minutiae, it can use up an inordinate amount of an ethics
program's limited resources. Annual disclosure issues can also take
up too many resources, especially with respect to enforcement.
Equally the investigation and enforcement of minor matters can be a
big waste of time that could better be spent on education, outreach,
and advice. 
 
Some Good Quotes 
"To the extent required to uphold the fiduciary principle in
government, two-career couples should also be interdependent in
matters of ethics." (p. 44) 
 
"Debate over ethics rules for the 'revolving door' goes to the heart
of what type of government we want—one like France, run principally
by career bureaucrats, or one like the United States, where many
senior officials have the perspective and experience of the private
sector, but sometimes also the burden of appearing to be beholden to
the private sector." (p. 47) 
 
"Spending money on the Office of Government Ethics and on agency ethics programs should save
taxpayers money in the long run." (p. 76) 
 
"Each new wave of 'lobbying reform' gives lobbyists higher status
because they purport to adhere to more stringent rules." (p. 185) 
 
"Political parties should acknowledge that they share responsibility
for a political system that allows and even encourages departures
from the fiduciary principle. Ethics is, instead, viewed by both
parties as the other party's problem. Ethics has thus become a
political weapon that is discussed principally in the aftermath of
scandals. Each party seeks to excuse the conduct of its own members
while accusing the other party of being unethical. ... Ethics reform
will meet the same fate as other politicized issues—slow,
contentious progress, if any, and solutions aimed at appearance
rather than substance—if leaders in both political parties do not
treat the subject seriously. ... Admittedly, partisan attack is
better than mutual cover-up" (p. 268-269) 
 
<a href="http://www.cityethics.org/content/summer-reading-richard-painter-ethics… 1 of this three-part post</a> 
<a href="http://www.cityethics.org/content/summer-reading-richard-painter-ethics… 2 of this three-part post</a> 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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