Ethics in Congress II - The Principles of Legislative Ethics and the Appearance Standard
<br><br>
In <a href="http://www.cityethics.org/content/ethics-congress-i-institutional-corru…; target="”_blank”">my
first post</a> on Dennis Thompson's 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>, I
quoted him as saying, "What makes the conduct improper is
institutional in the sense that it violates principles that promote
the distinctive purposes of the institution." What are these
principles? Thompson focuses on three "legislative
principles": independence, fairness, and accountability.<br>
<br>
By independence, Thompson means independence "from influences that
are clearly irrelevant to any process of deliberation." By
deliberation, he means public discussion of the merits of a matter,
not, for example, the use of leverage to do things behind the scenes. The value of deliberation applies equally to individual corruption: “What is wrong with
personal gain is that it distorts deliberation. It distracts a
[legislator] from public duties … The aim of rules against personal
gain, then, should be to keep [legislators'] minds concentrated as
far as possible on the substance of issues and standards of fairness
rather than on benefits that they, their friends, or their favorite
causes might receive."<br>
<br>
By fairness, Thompson means playing by the rules. He notes that
members of Congress have “obligations to colleagues, staff,
challengers, other officials, and the institution as a whole.
Fairness speaks first to the rights of members: protecting
their legitimate claims … But it is less often appreciated that
fairness also implies that members have obligations.” These
obligations of fair play include using the perquisites of office
only for official business, accepting responsibility for the
reputation of the institution, and respecting the legitimate
interests of the other branches. “The obligations of fair play are
difficult to codify and are therefore the least developed part of
legislative ethics.”<br>
<br>
By accountability, Thompson means doing what is necessary to
preserve the public's confidence in the legislative process. He
notes that “there is a gap between acting for the right reasons and
being perceived as acting for the right reasons." And there is a
clear reason for this, which is often ignored: that "citizens
judge the ethics of [legislators] at a distance. They do not have
the usual cues of personal relations, and they cannot be confident
of the motives or the influences that move members to act."
Legislators therefore need not only to act for the right reasons,
but also to "provide reasonable assurance that they are doing so." That is,
they need to avoid the appearance of impropriety.<br>
<br>
Why is this accountability? Let's try another approach. When Sen. Cranston was caught up in the <a href="http://en.wikipedia.org/wiki/Keating_five" target="”_blank”">Keating Five
scandal</a>, he “objected to the suggestion that his conduct
should be judged by how it appeared. He insisted that only he could
judge his own motives." If a legislator is the only judge of his
motives and his conduct, how can he be held accountable for what he
does? And if someone else is to judge him, how can they be expected
to go beyond appearances?<br>
<br>
And yet when a legislator does something that creates an appearance
of impropriety, it is usually considered "a minor, lesser offense, a
sort of pale reflection of the real offense. ... A former director
of the [federal] Office of Government Ethics [said], ‘our attitude
is, when there is an appearance problem, that the persons involved
have done no wrong, have committed no improprieties, and are
presumed to have acted ethically. It is an appearance only.’" <br>
<br>
Thompson disagrees. "Properly interpreted, the appearance standard
identifies a distinct wrong, independent of and no less serious than
the wrong of which it is an appearance. It would be better called a
tendency standard because it presumes that under certain
institutional conditions, the connection between contributions and
services <i>tends to</i> be
improper.”<br>
<br>
Thompson grounds his view of the appearance standard in the
legislator's principal role. A legislator's obligation to respect
people’s reasonable reactions “goes to the core of the role of a
representative. Citizens have a right to insist, as the price of
trust in a democracy, that officials not give reason to doubt their
trustworthiness. ... Representatives must avoid acting under
conditions that give rise to a reasonable belief of wrongdoing. When
they fail to avoid doing so, they do not merely appear to do wrong,
they do wrong.”<br>
<br>
Thompson shows that much of what we consider to be basic government
ethics rules are actually forms of the appearance standard. He puts
it this way: “Conflicts of interest can be thought of as appearances
of wrongdoing made categorical.” In other words, the situation where
a legislator has a conflict between his personal interests and the
public interest does not mean that when he votes, he will be
corrupt. It means that if he votes, he will <i>appear</i> corrupt.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
203-859-1959