The Paradoxes of Political Ethics

Dennis F. Thompson

Harvard University

Government Ethics Conference

Office of Government Ethics
Virginia Beach, Virginia
September 11-13, 1991

Good afternoon: members of the “priesthood of ethics counselors,” “roving commissars” of ethics, “mullahs of the U.S. Government.”

These, I hasten to add, are not the titles I would necessarily choose for you (though you’ll have to admit that they are more colorful than “Designated Agency Ethics Officer”). They are the names you were called in Congress during the debate on the Ethics in Government Act of 1978. One committee chairman (someone who was in favor of the Act) described the proposed system of ethics officers as “a sort of independent police force, a band of roving commissars... [who would be] sprinkled throughout the various Government agencies willy-nilly on a rotating basis to look under every leaf and twig.”1

I do not know what those who opposed your creation would say today, but I have to say that you do not look like the kind of people who are eager to look “under every leaf and twig,” whether “on a rotating basis” or not. That is not, I suspect, how you think of yourself, and it is not, I am confident, how citizens want to think of you. The role of an ethics officer is, or should be, more like that of an educator than an enforcer.

That the job of government ethics is educational is now more widely appreciated, thanks in part to the efforts of many of you here today. But less often addressed is the question of what ethics education is for. What ultimately is the point of all these advisory opinions, telephone consults, and SF 278’s?

I want to spend most of my time today giving (and trying to defend) an answer to this question. I will be suggesting that the main business of government ethics should be what I call education in democracy.

What I have in mind by saying that ethics should be “education in democracy” is in a sense quite simple. I am suggesting that the process government ethics regulation should be seen as a way of reminding officials that they are accountable to the public—that they primarily serve, not their administrative superiors, not even their own consciences, but rather all citizens. I want to argue that a failure to appreciate this simple point—to understand what is really at stake in setting standards for official conduct—is at the root of some common misconceptions about government ethics.

I want to talk about three of these misconceptions today. They arise from what I call “the paradoxes of political ethics.” I call them “paradoxes”—not out of a philosopher’s urge to try to make ordinary problems appear obscure, but (I hope) out of a belief that the misconceptions actually reflect some real tensions in both political philosophy and practical politics.

I am not, of course, suggesting that any one here holds the misconceptions I will be describing, but I suspect that most of you have encountered officials who do hold them. I know that I have encountered many ordinary citizens, including political scientists and philosophers, who hold them. In any case, I hope that what I have to say about the paradoxes will shed some light on why your educational responsibility is so difficult, and also why it is so important.

I. The Priority of Government Ethics

The first paradox I want to talk about has to do with the relative importance of government ethics. It goes something like this: “Because other issues are more important than ethics, ethics is more important than any single issue.” Let me try to explain why I think this paradox is true.

Here is a common complaint—you have heard it many times:

Why are we spending so much time on ethics when there are so many other more important problems that need our attention? Why are we spending our time trying to catch individual officials who accept some $26 gift when we could be dealing with the conflicts in the Middle East, the plight of the economy, the drug problem?2

There is an important truth in these complaints: not only are these serious problems, but they are in a sense more serious than any problem of government ethics. Would you rather have a morally corrupt government that solved all these problems, or a morally pure government that failed to solve any of them?

If that were the choice, I suspect that most of us would sacrifice moral purity. Ethics is not a primary goal of government in the way that (say) national defense, economic prosperity, or public welfare are. These and other public policy goals are intrinsic to government: they are part of the reason we establish and maintain government. Ethics is mainly instrumental to government: its main purpose is to contributes to the other, intrinsic goals of government. 3

But from this truth (that ethics is instrumental), it does not follow, as many people seem to think, that ethics is unimportant, or even that it is always less important than other issues. Ethics may be only instrumental, it may be only a means to an end, but it is a necessary means to an end. Government ethics provides the preconditions for the making of good public policy. In this sense, it is more important than any single policy, because all policies depend on it.

What does it mean to say that ethics provides the preconditions for good government? In the first place, ethics rules increase the likelihood that officials will make decisions on the basis of the merits of issues rather than on the basis of factors such as private gain, which ought to be irrelevant.

The point is not to prevent private gain as such. Despite the strong condemnations of private gain in most government ethics codes, there is nothing in itself wrong with personally benefiting from holding public office.4 What’s wrong with private gain is that it often leads to unfairness and partiality.— The main aim of the rules against private gain should be to prevent the corruption of official judgment—to keep officials’ minds concentrated on as far as possible the substance of issues, rather than on benefits their friends or their favorite causes might receive.

The purpose is to protect against the quite common habit of mind exemplified by the infamous comment of “Engine Charlie Wilson” (the General Motors executive who became Secretary of Defense). Engine Charlie is often quoted as saying: “What is good for General Motors is good the country.” We should be suspicious of quotations like this. One reason we should be suspicious of this one is that “Engine Charlie” did not say it. He was misquoted by a reporter. (That is a problem for another conference—on the ethics of journalists.)

What Engine Charlie actually said was: “... I thought what was good for our country was good for General Motors, and vice versa.” This does not sound quite so bad. But what is also usually forgotten is that he made this statement during his confirmation hearings, trying to defend his unwillingness to sell his General Motor stock before he became Secretary of Defense. Although the Senators had no ethics law to back them up on this point, Engine Charlie lost the argument, and had to sell his stock.

Even if officials were able to overcome personal biases in making difficult decisions, citizens could still have reasonable doubts. This fact points to the second precondition that ethics standards help provide—creating and maintaining confidence in government. This is the stated objective in the first paragraph of the new proposed standards you have been discussing, but its full meaning, I think, is not always appreciated.2

The confidence that ethics rules are supposed to give citizens is not just some general good feeling about government; it is not just to make citizens sleep better. It is supposed to give some assurance that officials are making decisions on the merits. If citizens have this assurance, they are less likely to raise questions about the motives of officials, and are themselves more likely to concentrate on the merits of decisions, and on the substantive qualifications of the officials who are making the decisions.

Take, for example, this summer’s most prominent scandal in the executive branch: the adventures of the peripatetic John Sununu. I do not mean to pick on Governor Sununu—partly because I don’t want to jeopardize the chances of there being a plane available to take me back to Boston. But also, it seems clear that he did not break any law, and may not even have violated any ethics rule, as currently written. Yet his actions—accepting free or below-cost trips on corporate jets, using the White House limousine, and an Air force jet for personal visits—caused many people (including some of his colleagues in the White House) to raise questions about his judgment. They were right to raise questions, I think, because the actions are of a kind that officials in Sununu’s position should not take, whether or not they are legally prohibited.

But my main point is that, in the absence of clear ethics rules on this matter, the priorities of government business and public debate become distorted. Members of the White House staff spent too much of the month of June trying to contain the damage of this scandal. Members of Congress, the press, and citizens also had to spend too much of the month questioning Sununu’s motives, instead of scrutinizing his role on other decisions, such as the civil rights bill, or the choice of a nominee for the Supreme Court.

When ethics are in disorder, or when citizens believe they are, we should not be surprised that disputes about ethics drive out discussion about public policies. We need to pay attention to ethics precisely so that ethical controversy does not distract us from matters that would otherwise be more important. That is why ethics is so important. Ethics makes democracy safe for debate on the substance of public policy.

II. The Difference between Government Ethics and Personal Ethics

The second paradox I want to draw your attention to comes from the difference between government ethics and personal ethics. The difference is perhaps not so great that we should accept the classic maxim, “Private vice is public virtue.” But the difference is great enough that we might well say that “Private virtue is not necessarily public virtue.”

One of the major challenges of government ethics—one of the principal tasks of what I have called education in democracy—is to persuade prospective government officials that, however impeccable their moral character, they still must fill out Form 278. What, they ask, do disclosure forms and post-employment rules have to do with being ethical?

What they need to understand is that personal morality and political ethics are quite different creatures. They have quite different origins and purposes. Personal morality originates in face-to-face relations among individuals, and it aims to make people morally better. Political ethics has more modest aims. It arises from the need to set standards for impersonal relations among people who may never meet, and it seeks only to make public policy better by making public officials more accountable.

Some conduct that may be wrong in personal ethics (for example, certain sexual practices) is usually ignored by political ethics, and some conduct that is praiseworthy in personal ethics (returning a favor, or giving preference to a friend) may violate the principles of political ethics.

Some people who are paragons of virtue in both their personal affairs and their business dealings in private life may get into trouble when they come to Washington because they do not realize that government ethics requires more, or at least something different. They experience what I think of as a reverse spin on “Mr. Smith Goes to Washington”: instead of finding lower standards of conduct in government, they are shocked to find higher standards (or at least more restrictive ones). Being respectable in their own communities and corporations, they find it hard to understand why they should take these more restrictive standards seriously, especially since they do not have as much respect for government as they do for institutions in the private sector.

A failure to appreciate the difference between personal ethics and government ethics also causes prospective and current officials to resist the idea that they need help in learning how to be ethical in public life. Many take the view expressed by former Congressmen Pike in his recent testimony before the House Task Force on Ethics:

No one learns his ethics in Congress... No one need to be told by his colleagues what is right and fair and honorable ... `All I Really Need to Know I Learned in Kindergarten’ ...”5

(Congressman Pike did concede that we could stand to learn something more about ethics: “We don’t know how to define ethics, and we aren’t sure whether the word is singular or plural.”)

However precocious a kindergartner might be, he is not likely quickly to master the post-employment restrictions. (Try to imagine a Sesame Street segment, maybe with Kermit the Frog: “Now, class, recite after me: For one year, take no trips to your former agency; for two years, raise no topics under your former responsibility; and never never raise a matter in which you participated personally and substantially.”)

The longing for simplification in ethics is long standing. Mo Udall, who retired this year after 30 years of service in Congress, used to run an orientation session for new members. Occasionally, someone would ask about the ethics rules. Udall supposedly would tell him:

Ethics? Well, that is easy; there are only two rules.

1. report any gift you get that is worth more than five dollars.
2. anything that comes in a bottle is worth $4.95.

We should not expect the rules of government ethics to be simple, or to become simpler in the future. As government has become more complex, government ethics—the standards necessary to assure citizens that those who must cope with this complexity are serving with honor—are also likely to become more complex. As those who serve come from more diverse backgrounds and begin with fewer values in common, the rules of government ethics have to be more explicit. Private virtue will not automatically turn into public virtue.

III. The Importance of Appearances

I come now to the third paradox, which has to do with the importance of appearances—the so-called “appearance standard”. Here is one (particularly paradoxical) way of stating the paradox: “Appearing to do wrong while doing right is really doing wrong.”6

Everyone at least pays lip service to the importance of avoiding the appearance of impropriety. But there is a tendency to think of them as merely prudential, as a requirement of public relations, rather than as having any ethical significance themselves. On this view, appearing to do wrong is not really wrong.

This view is held by many respectable people. Here is one respectable person defending Sununu:

Nobody likes the appearance of impropriety. On the other hand... you shouldn’t be judged by appearance. You ought to be judged by fact.”R. W. Apple, “A Sununu ‘Appearance Problem’ is Conceded by a Still-Loyal Bush,” New York Times, (June 20, 1991), p. D22.

(That is President Bush, who was going to speak here tonight but changed his mind no doubt because he heard that I was going to criticize his view of the appearance standard.)

This view of the standard is taken not only by Presidents, but also by some ethics officials. Here is David Martin, a former director of the very agency sponsoring this conference:

"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.

This paradox is closely related to the one I have just been discussing. It could be seen as another instance of the confusion of private and public ethics. But it is the source of such widespread and subversive misunderstandings of government ethics that it deserves, I think, separate attention.

Whether or not this view is a mistaken interpretation of the ethics standards as they are now written, I believe that it is a mistaken basis for the ethical standards we ought to have. Officials who appear to do wrong actually do several kinds of moral wrong: they undermine the confidence in government, they give citizens reason to act as if government cannot be trusted, and (most of all) they undermine democratic accountability.

The appearance standard expresses principles that are at the heart of our constitution. The Founding Fathers designed our system of government so that public officials are deliberately subjected to many different kinds of pressures and are permitted to act on many different motives. Under these conditions, it is hard enough for any individual official, however conscientious, to find the right balance of these pressures and motives, to sort out the proper from the improper in making any particular decision. It must be virtually impossible for citizens, even well informed and nonpartisan ones, to judge at a distance whether the official has really done so.

The only reliable way that citizens can judge whether improper actions took place is by looking at the circumstances under which officials act. If the circumstances are of the kind that we know from past experience tend to lead to improper actions, citizens are justified in concluding that an action is improper. When an official accepts favors from an interested group, whether or not the official’s judgment is influenced, citizens are justified—ethically justified—in believing, and acting on the belief, that the official’s judgment has been influenced.

Because appearances are often the only window that citizens have on official conduct, to reject the appearance standard is to reject democratic accountability. This was dramatically demonstrated during the Keating Five Hearings, with which I was involved last year (not as a friend of Mr. Keating, I should make clear). Senator Cranston, like several others, kept objecting to the idea that his conduct should be judged by how it appears, even to a reasonable person. That is a “mythical person,” he said; the only real person who can judge is the Senator himself. “...You were not there. I was there. And I know that what I knew at the time... convinced me that my [actions] were appropriate...”7

This kind of attitude—only I can judge—is out of place in a democracy, and it is precisely the kind of attitude that the appearance standard is intended to combat.

If the argument for the appearance standard I have put forward is right, then why do so many public officials resist it? I would like to think it is only because they have not heard my argument. But perhaps there are other explanations. The main objection that critics raise is that the standard is too subjective: what appears wrong to some people does not appear wrong to others, and officials become vulnerable to unfair charges.

But the appearance standard is, or can easily be made to be, as objective as any other standard. It is a standard based on objective empirical regularities: we have observed in the past that certain kinds of practices (accepting free air travel) tend to bring about corruption, and therefore we condemn these practices now, whether or not they have done so in this case. The new proposed standards are a further move in this direction; for the first time they refer to “the perspective of a reasonable person with knowledge of the relevant facts.”8

In any case, a reasonable citizen in a democracy will insist that public officials have an ethical obligation to protect the appearance of propriety no less important as the obligation to produce its reality. Appearances matter ethically, not just politically.

Conclusion

I began by suggesting that government ethics should be seen as more an educational than an enforcement responsibility. A large part of that responsibility is persuading public officials, and those who would become public officials, that the rules of government ethics are an integral part of our democratic process. They must come to appreciate the paradoxes of ethics I have been talking about today, and come to see that misconceptions of ethics stand in the way of making government more democratic. That is why I called this task, “education in democracy.”

It is a challenging responsibility. (I am glad that it is yours, not mine.) But if you accept my rendering of the role of the government ethics officer, your responsibility may be even greater than it has been in the past.

One way in which it may become greater is by becoming more positive. Because the lessons that educators impart should be constructive, some of the instruction you provide will have to be positive—more positive, for example, than one of the OGE’s most popular publications, How To Keep Out of Trouble. (One of my favorite parts is the section entitled “Can You Gamble While on Duty?” The answer, in case you’re wondering, is “No.”) This kind of handbook is certainly necessary and important, but ethics education should go further. It should be about not only how to stay out of trouble but also how to make democracy work better.

Let me mention one other way in which your responsibilities may increase. To be effective educators, ethics officers will have to maintain a strong and salient presence throughout the government. Ethics officers are certainly better known than they used to be, but I suspect that many of you still feel you are engaged in a lonely struggle. You may have the sense that, when the rest of the government is not attacking you, they are ignoring you.

I can sympathize. During the “Keating Five” hearings, Ed Gray (the former head of the Bank Board, and one of the key witnesses against the Senators) was asked why he did not report their alleged misconduct to the Ethics Committee. He paused, looked slightly embarrassed, and then said: “I didn’t even know there was an Ethics Committee.” It was a sobering comment for the Committee and the rest of us involved in the hearings. It was a reminder that even those who seem to care about the practice of ethics may not know much about the institutions of ethics.

I trust that you and your colleagues are doing your part to make sure that the Ed Grays of the government know that there are ethics officers on duty and on call.

I salute you and the rest of the “roving commissars” of ethics, all of those who are serving in what I like to think of as the classrooms of government ethics. The lessons being learned there are vital to the viability of our democratic government.

Footnotes

(See footnotes below - but be aware that there may be some errors in the footnotes...)

{fn}. [Unknown to which text this footnote applies.] 5 CFR 2635.101,   2635.101(b)(14). They also establish a procedure by which an agency ethics officer may authorize officials who have an appearance problem in particular cases not to disqualify themselves. This procedure is a “means to ensure that their conduct will not be found, as a matter of hindsight, to have been improper,” and thus provides a further objective basis for the standard [2536.502 (d) (comment at p. 33786)].

• 1. . Robert N. Roberts, White House Ethics (Greenwood Press, 1988), p. 181.
• 2. a. b. See  2635 101 (b)7; and   2635.702 (a)-(e) [comment at p. 33788]. An example of what seems an excessive effort to prohibit private gain is the proposed restriction on the use of one’s title when engaged in teaching, speaking or writing [  2635.807 (3)(b)]
• 3. Compare former Congressman Otis Pike in his testimony before the U.S. House, Task Force on Ethics (May 3, 1989): “You were not sent here to peek through the windows of each other’s private lives. You weren't even sent here to appear ethical. You were sent here to write laws and resolve problems. Your preoccupation with each other’s ethics is preventing you from doing your jobs” (p. 2).
• 4. This is not to say that government ethics does not have any intrinsic value; honest government is a good in itself, valuable independently of any good policies that government may make, but only the value of ethics is still a by-product of government, not a good at which government directly aims.
• 5. That fairness is a significant part of the rationale for prohibiting compensation for outside activities is evident in the justification for the exception allowed for teaching: “there is little possibility that [anyone] will unfairly benefit from their government positions” (p. 33790).
• 6. .   2635.101 (a)
• 7. R. W. Apple, “A Sununu ‘Appearance Problem’ is Conceded by a Still-Loyal Bush,” New York Times, (June 20, 1991), p. D22.
• 8. Oversight of the Office of Government Ethics, Hearing before the Subcommittee on Oversight of Government Management, Committee on Governmental Affairs, 99th Con., April 24, 1985, p. 149.