The Big Picture

Monday evening, I learned about the serious consequences that can result from not giving ethics commission members a clear understanding of what government ethics is, and what it is not.

The occasion was the consideration by the Democracy Fund board, which oversees the public campaign financing program in New Haven, of a possible violation of the program's ordinance and regulations.

I am the Democracy Fund Administrator. Focused on the topics before the board, I never stepped back and gave board members a clear idea of where their program stands in the world of government ethics and what government ethics means, what its goals are, what its boundaries are, etc. I thought it would be enough to understand the role of a public campaign financing program. It is not.

The question was whether to initiate the investigation of a matter involving the current mayor's campaign committee for possible late and insufficient filings of campaign finance reports. Although there were many minor issues that confused things, the two major issues were the possible filing of a termination report over a year after it was due and the disclosure of a $24,000 expenditure a year and a half after it was made (the candidate was running unopposed, so this expenditure was a sizeable percentage of the campaign's total expenditures).

At the board meeting, the mayoral campaign committee admitted having made some inadvertent errors, but insisted that it had the state's permission to report the large expenditure and other receipts and expenditures in its termination report a year and a half after the election, rather than including them in prior reports or amending the latest report.

However, despite ongoing correspondence with me, the committee had not reported to me that these receipts or expenditures existed or asked me whether it was okay not to disclose them until a year and a half after the election.

To a government ethics professional, there would be no question whether or not this matter should have been investigated. There may be mitigating (and extenuating) circumstances, but it is important to determine whether the late and insufficient filing provisions had been violated.

But to many laypersons, this sort of matter seems petty, and wasteful of time and effort. "Inadvertent errors" should not be investigated and fined, they should be forgiven. People are only human. Enforcement should be limited to situations where there is clear intent and, especially, economic malfeasance, that is, stealing or misusing money. A failure to report is of little meaning. No one is hurt, public funds are not used for personal purposes. No one is bad.

The problem is that government ethics is not about being bad or having a malicious intent. And it's not about stealing and misusing public funds. These are primarily criminal issues.

I said this at the meeting, but was not believed. It is important to approach the issue of what government ethics is from several points of view, because different people are struck by different things. So let me say something a little more provocative:  government ethics is not primarily about individual misconduct.

I am in the midst of reading Dennis Thompson's 1995 book, Ethics in Congress: From Individual to Institutional Corruption. I highly recommend this book, which is less about Congress than about government ethics. The book is still in print. When I'm done reading it, I will be writing several blog posts applying some of Thompson's ideas to local government ethics.

Thompson's principal argument in this book is that enforcement of government ethics laws focuses too much on individual corruption, and too little on institutional corruption. Thompson notes right at the beginning of chapter one, "The function of personal ethics is to make people morally better ... Legislative ethics serves to guide the actions of individuals, but only in their institutional roles and only insofar as necessary for the good of the institution. Legislative ethics uses personal ethics only as a means–not even the most important means–to the end of institutional integrity."

In other words, government ethics is not about people being bad or doing bad things, it is about people harming their government by acting in ways that undermine public trust in their government, such as failing to be transparent, irresponsibly handling conflicts of interest, and breaking campaign finance rules.

Institutional corruption is the principal issue especially when what an official is doing is legal, such as accepting campaign contributions and making campaign expenditures. Unlike stealing money or accepting gifts from contractors, everyone does this and it is legally acceptable. And yet it can be abused. It can be abused by failing to disclose contributions and expenditures (a lack of transparency). It can be abused by accepting improper contributions (e.g., large contributions from companies seeking benefits from the government), by requiring contributions from those seeking benefits (pay to play), and by making improper expenditures (e.g., paying half (or twice) the fair market value for goods purchased).

These "abuses" are legal in many states and localities. In many places they are prohibited. But they are not prohibited because they involve economic malfeasance or even malicious intent. They are prohibited because if everyone did these things, it would appear to the public that candidates were hiding information, and allowing campaigns to be, or seem to be, about the influence of companies and individuals who are seeking benefits from government.

Thompson shows again and again how Congress's ethics committee, like local ethics commissions across the country, approach institutional corruption as if it were individual corruption. If there is no clear proof of individual misconduct, ethics commissions sometimes choose not to enforce ethics laws. They do not recognize that, although an individual may stand before them, it is only the individual's institutional role and responsibilities that matter.

It is good to feel compassion for individuals who make mistakes. And government ethics enforcement has places for this compassion:  (i) the consideration of mitigating circumstances in setting the amount of a fine and (ii) staff advice to officials and candidates to help them fulfill their responsibilities.

But the goal of government ethics enforcement is not to protect individual officials, but to protect the government institution, the political process, and the public. None of these is served by limiting enforcement to malicious individual misconduct.

It has been irresponsible of me, as administrator, not to train the Democracy Fund board members in more than the mechanics of the public campaign financing program. Government ethics is far more than mechanics. Government ethics professionals need to explain the big picture to laypersons who become involved in government ethics. I will be sending them this blog post to the board members as a way to start unveiling the big picture.

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959