Tag Archives: ethics

Deplorable Hoosier Ethics

Same old, same old.

The headline on a recent editorial from the Fort Wayne Journal Gazette pretty well sums it up– State Sinks Further into Ethics Morass. 

The editorial asked the 64-Thousand-Dollar question: “How low will the bar have to slip before Indiana lawmakers finally demand tougher ethics laws?”

Troy Woodruff and Inspector General David Thomas have lowered it another notch. Woodruff, the former chief of staff for the Indiana Department of Transportation, won’t face criminal or civil charges related to state land deals benefiting his own family members, thanks to a ruling from Thomas.

The inspector general simply concluded Woodruff’s conduct “gives rise to the appearance of impropriety” and “diminishes public trust.”

And how.

Woodruff’s “appearance of impropriety” (it appeared improper because it was improper) is just the latest in a sorry string of episodes in which Indiana elected and appointed officials have abused the public trust, using their positions to enrich themselves or their families.

A couple of years ago, it was Eric Turner, twisting arms behind the scenes to protect his family’s lucrative nursing home business; more recently, an employee of the Bureau of Motor Vehicles negotiated a cushy contract between the Bureau and a private vendor, and then–what a coincidence!–left the BMV for a high-level job with that vendor. (After the BMV story became front-page news, Governor Pence cancelled the contract and ordered an “ethics investigation” of the transaction. I think this is what is meant by “locking the barn door after the horse is stolen…”)

Rep. Robert Behning, who chairs the House Education Committee, formed an education lobbying company. The House Ethics Committee is “looking into” whether or not he violated the rules.

Even Indiana’s Inspector General– who seems more interested in downplaying and minimizing ethics violations than punishing them– found former Secretary of Education Tony Bennett in violation of the state ethics code.

In Woodruff’s case, as the Journal Gazette reported,

After Woodruff’s legislative defeat, he and his wife both were awarded state jobs. His mother also was hired by INDOT. His wife remains a highway department employee; Troy Woodruff left last week to go into business for himself – taking with him with years of taxpayer-supported job-training and invaluable state connections.

Statehouse observers have long whispered that the violations that get reported are just the tip of the iceberg–that backscratching and conflicts of interest are widely accepted as the way business is done in Indiana government. They note that with the exodus of experienced statehouse reporters and the diminished news coverage of state government, only the most rash and egregious behavior ever gets reported.

I’ll give the last word to the Journal Gazette.

Lawmakers ignore the repeated absolution of ethical lapses at their own risk. Voters can’t continue to overlook conflicts allowing lawmakers’ friends and allies to grow richer even as their own communities suffer from dwindling state support. They eventually will cry foul over the Statehouse’s low ethical threshold.

A Question of Trust

U.S. Senator Chris Murphy has introduced a bill that would require the Supreme Court to develop a code of ethics. (Surprising at it may seem, the high court does not have such a code, although all other courts do.)

The bill was prompted by several recent controversies over judicial recusal, especially a number of cases in which Scalia–who has grown more voluble and intemperate over the years– has spoken publicly on the merits of cases that were highly likely to come before the Court (historically, and under existing codes of ethics, a judicial no-no) and then refused to recuse himself when the cases were argued.

There has also been considerable criticism of Justice Thomas, who has failed to recuse himself in cases where his wife has a clear interest in the result. Justice Kagan has been criticized for sitting on cases in which she was involved to some extent as Solicitor General.

As a scholar of constitutional courts noted on a listserv the other day, “the US is still rare in the world in making recusal of a judge a matter for the personal decision of that judge, without any way to contest it.  In the German Federal Constitutional Court, for example, the decision to remove a judge from a particular case is made by the rest of the judges in that Senate with the judge in question not participating.    We should have some comparable process here.”

Codes of ethics are about more than recusal, of course. They are centered on avoiding even the appearance of impropriety, in recognition that the legitimacy of public institutions and especially the Courts is dependent upon public trust.

Ethics codes typically limit the value of gifts that may be accepted, or forbid their acceptance at all. That includes junkets, generously paid speaking engagements, and other activities or favors that might produce bias. And most codes of ethics require a measure of disclosure significantly greater than is current Court practice.

In a government based on separation of powers, the legislature may lack the authority to tell the Court to clean up its act–and the Court gets the final word on that issue. In a Court as ideologically divided as this one, I suppose decisions about recusal could themselves become politicized. The GOP’s Tea Party wing will probably oppose Murphy’s bill, since most of the shenanigans these days are by conservative jurists. So passage of this measure is hardly a slam-dunk.

That said, it really is indefensible that the Supreme Court exempts itself from ethical principles that apply to other judicial and administrative entities. Even Congress has a Code of Ethics, however honored in the breach it may be.

When Justice Scalia goes duck hunting with a litigant (Dick Cheney) whose case is then pending before the Court; when Thomas sits on a case despite the fact that his wife’s organization is an interested party, I think skepticism about their ability to render a dispassionate verdict is understandable–and foreseeable.

Such behavior erodes the public trust, and it greatly diminishes the stature of the Court.

There is a reason Courts should be–and be seen to be–incorruptable. They are, after all, in the business of disappointing litigants; every time someone wins, someone else loses. If credible charges of favoritism or bias can be leveled, even if untrue, citizens ultimately lose respect for the rule of law.

Judges–especially Supreme Court Justices– used to take great pains to avoid the slightest appearance of impropriety; they used to aspire to be “as pure as the driven snow.” Lately (as Mae West memorably put it), they’ve drifted.

 

 

 

Why Cynicism is Growing

I’ve been distressed by the growing cynicism of the students I teach–a cynicism about the motives of those in business and public life that has seemed to grow over the past few years. There have always been a few who sneered that “public service” was an oxymoron, who believed that given the chance, everyone would demonstrate greed and disregard for others, but most students were more charitable in their judgments.

Still, as I detailed in my book “Distrust, American Style,” we’ve seen a lot of corrupt institutional behavior over the past couple of decades. Enron, WorldCon, the various scandals in major-league sports, the Catholic Church’s cover-up to protect pedophile priests, the Bush Administration’s assaults on civil liberties and its dishonest case for war in Iraq–there has been plenty of reason for cynicism and distrust. While I’m sure similar examples have existed throughout our history,  the growth of Facebook and Twitter and blogs has brought news of the misbehavior to many more people than might previously have known what was going on.

Student cynicism began to grow more pronounced around the time we headed into the Great Recession, as the public learned much more about the behaviors and compensation levels of the “banksters.” (Rhymes with gangsters….). The widely publicized emergence of SuperPacs funded by corporations intent upon protecting  favorable tax rates and corporate welfare hasn’t helped.

This morning’s news provides two examples, noteworthy only because they’ve become utterly commonplace.

The first example–Brian Bosma’s appointment of a lobbyist with his law firm as parliamentarian–prompted this editorial language from the Indianapolis Star:

Whetstone is coming back to work for Speaker Brian Bosma as the House parliamentarian, even though he will continue to work with the lobbying firm of Krieg DeVault LLP. Whetstone has pledged not to lobby the legislature during his employment as parliamentarian, a job that pays $12,000 a month through the legislative sesion.

Whetstone says Krieg DeVault holds itself to the highest ethical standards. Even so, there’s a conflict of interest, or at least the appearance of one. As parliamentarian, Whetstone will advise the House Speaker on rules challenges and other procedural questions that arise. What happens if he’s asked to weigh in on a challenge that would affect legislation supported by one of his former clients, or by clients of other lobbyists working for Krieg DeVault?

The second was a report that the executives who took Hostess into bankruptcy and blamed that decision on “greedy unions” unwilling to take yet another round of pay cuts even while those executives tripled their own compensation have petitioned the bankruptcy court to approve the payment of their bonuses as part of the court-supervised demise of the business. (There’s a yiddish word for this: chutzpah.)

When the daily news consists of little but reports of self-dealing and ethical obtuseness, of evidence that politicians continue to put special interests above the national interest, how can I fault the students who assume that the whole world works that way?

Civic Literacy and Ethical Public Service: An Under-Appreciated Nexus

A few years ago, the political blog Talking Points Memo established the “Golden Dukes,” an award intended to recognize, as they put it, “great accomplishments in muckiness including acts of venal corruption, outstanding self-inflicted losses of dignity, crimes against the republic, bribery, exposed hypocrisy and generally malevolent governance.” (TalkingPpointsMemo.com, 2011) The awards were named for Congressman-turned-inmate Randy “Duke” Cunningham, who was identified as an icon of modern scandal, combining, as the blog cheerfully reported, “outlandish corruption, national security, sex, and sheer cartoonish ridiculousness.”1 As that tongue-in-cheek award signifies, over the past few years, Americans have been treated to a steady stream of ethically troubling disclosures involving the federal government, typified by the scandal about Jack Abramoff’s widespread influence peddling.2

It may be comforting to believe that such ethical transgressions occur more frequently in Washington, where well-heeled lobbyists are in a position to fund serious deviations from ethical norms. But in point of fact, there is ample evidence that public officials at all levels, as well as nonprofit managers who do business with government, may engage in behaviors that are ethically dubious, while often seemingly unaware of their mpropriety (Lessig 2011).

In 2011, for example, in Indianapolis city administration negotiated a 50-year lease of its parking infrastructure to a corporation. Leading up to the required City-County Council vote, there was an intense debate about the merits and terms of that agreement, the unusual length of the lease, the bona fides of the chosen vendor, and the wisdom of handing over control of the City’s curb lanes to a contractor. Ultimately, the Council approved the lease by a single vote. The transaction would have failed had the Council President—a lawyer employed by the firm that represented the vendor—recused himself. There was no outcry from local media, although several local legal blogs pointed out that this vote constituted a clear conflict of interest and certainly appeared to be in violation of the applicable Canons of Legal Ethics. To the extent there was any discussion at all about the propriety of this councilor’s behavior, it was shrugged off as “business as usual.”

Also described as “business as usual” was a recent article (Kopsa, 2012) about a multi-year, 1,500,000 grant of Medicaid dollars to the Indiana Family Institute (IFI) for a “Healthy Marriage” demonstration project. The story raised a number of legal and ethical questions concerning this particular use of Medicaid funds, including the multiple roles played by IFI’s Program Director—the person in charge of the “Healthy Families” project. In addition to her duties as contractor—duties requiring that she deliver a taxpayer-funded program in a constitutionally appropriate (i.e., secular) fashion—this individual was a lobbyist for Indiana Right to Life, and a principal of a political action committee that lobbies for a state constitutional amendment banning same-sex marriage and for the defunding of Planned Parenthood. All three organizations are explicitly grounded in conservative Christian theology. The article identified several elected officials whose support of this grant was seen to be payback for the political support of these organizations and their members.

It is the thesis of this essay that when breaches of the public trust engender the sort of cynicism displayed in these and similar examples, that is not only a situation constituting a genuine, non-trivial threat to the ability of administrators to conduct the business of government, but also a failure of elementary constitutional and civic education.

Much of the available literature on what constitutes ethical behavior has focused upon the teaching of ethics, the effect of contracting out and the New Public Management, or the consequences of increasing “marketization,” and diminishing concern for the public good (Ejka-Ekins 1998; Fredrickson 2005; Metzger 2003; Singer 2003; Smith & Lipsky1993; Zanetta & Adams 2000). These are important topics, but considerably less attention has been paid to the nexus between ethical public behavior and American constitutional culture. Yet as scholars have long recognized, ethical public service is rooted in, and defined by, the founding premises of the American Constitution and Bill of Rights, and is for that reason essential to government legitimacy (Rohr 1988; Rosenbloom Carroll & Caroll 2000; Light 2012). It is important to emphasize the often-conflated distinction between personal and professional ethics in this context. While personal ethics are important to avert what Adams and Balfour (1998) have called “administrative evil,” the professional ethical obligations emphasized by Rohr and Rosenbloom, among others, require fidelity to the principles of the American legal and constitutional system. As Kennedy and Schultz have written,

“The decision-making procedures and substantive protections for rights found in the

Constitution and Bill of Rights define the first layer of duties and obligations that public

Servants have. Together, they define how decisions are to be made (procedural justice)

and what can be decided or done (substantive fairness or justice)…the Constitution and Bill of Rights form the first tier of a public administration or public service ethic.” (2011, 74-75)

Public administrators and those who teach them need to recognize both the constitutional roots of public sector ethics, and the negative systemic consequences of frequent deviations from ethical behavior. Average citizens may not be able to articulate the constitutional bases of their discomfort with conflicts of interest and other ethical departures, but they expect their public servants to understand that they have an ethical obligation to place the public good above private interest.

 

Ethics and Constitutional Culture

Unlike citizens of countries characterized by racial or ethnic homogeneity, American identity is rooted in allegiance to a particular worldview; it is based upon an understanding of government and citizenship originating with the Enlightenment and subsequently enshrined in the U.S. Constitution and Bill of Rights. Understood in this way, “constitutional culture” has a considerably broader scope than law and policy; it is an expression of the ongoing dialectic between a society’s legal norms and the broader culture within which those norms are situated and must be understood. The American “constitutional culture” arises from the operation of our constitutional values in a radically heterodox culture, and the effects of that interaction on policy choice and contestation.

Decisions made by those who designed America’s constitutional architecture have shaped contemporary definitions of public and private, notions of governmental and personal responsibility, and conceptions of human rights. They dictate the manner in which we frame and understand civic responsibility, and allocate collective social duties among governmental, nonprofit and private actors. In short, those initial constitutional choices have been constitutive of a distinctive American culture. What Kennedy and Schultz have called “the Constitutional Ethic” is behavior grounded in, and compatible with, that American Constitution (2011). When significant segments of the population do not know the history, philosophy or contents of the Constitution, they cannot judge the propriety of behavior of public administrators. Available data from a multitude of sources, however, gives evidence of a widespread lack of constitutional competence and civic literacy in the United States.

The statistics are depressing: Only 36 percent of Americans can correctly name the three branches of government (Annenberg, 2007). Fewer than half of 12th grade students can describe the meaning of federalism (NAEP, 2006). Only 35.5% of teenagers can correctly identify “We the People” as the first three words of the Constitution (National Constitution Center, 1998). The National Assessment of Education Progress (NAEP) 2006 report on civics competencies indicates that barely a quarter of the nation’s 4th, 8th and 12th graders are proficient in civics, with only five percent of seniors able to identify and explain checks on presidential power.

Survey after survey adds to the dismal picture, and while the various ways in which the questions are asked and the answers tallied may result in slightly different percentages depending upon the survey, the overall conclusions are consistent and discouraging.  A 1998 study conducted by the National Constitution Center found that more American teenagers were able to name the Three Stooges than the three branches of government (59% to 41%), and more knew the Fresh Prince of Bel-Air than could name the Chief Justice of the U.S. Supreme Court (94.7% to 2.2%). Although 58.3% were able to name Bill Gates as the “father” of Microsoft, only 1.8% could identify James Madison as the father of the Constitution.

During the confirmation hearings for Elena Kagan, Findlaw fielded a survey assessing public knowledge of the Supreme Court. This was during a time when news about the Court and arguments about the Justices were prominent; despite that heightened public attention, nearly two-thirds of respondents could not name a single member of the Court.

Last year, Newsweek Magazine, in a story titled “How Dumb Are We?”  found that, out of the 1000 Americans who took the test, 29% could not name the Vice-President of the United States, 73% couldn’t identify the reasons for the Cold War, and 44% were unable to define the Bill of Rights.

In an article written for the International Journal of Public Administration, William Galston noted that “It turns out that today’s college graduates know no more about politics than high school graduates did 50 years ago, and today’s high school graduates are no more knowledgeable than were high school dropouts of the past” (Galston, 2007).

Some of the available research argues that civic ignorance has remained relatively constant over time. During the 1990s, Michael X. Delli Carpini and Scott Keeter reviewed thousands of questions from three groups of surveys administered over a four-decade period.

They concluded that there was statistically little difference among the knowledge levels of the parents of the Silent Generation of the 1950s, the parents of the Baby Boomers of the 1960s, and American parents today. (Carpini and Keeter, )

Other research suggests that civic literacy has, in fact, declined, particularly for twelfth grade students.  At the end of the day, however, whether our current low levels represent a decline is less important than the fact that they may be too low to sustain both democratic governance and citizens’ ability to evaluate public sector ethics. Data reinforcing that message is plentiful. As Niemi and Junn wrote in Civic Education: What Makes Students Learn,

More recently, demonstrating the ignorance of the public has become something of a cottage industry, with one researcher after another trying to find a more absurd example of what Americans do not know about politics and government or a more apt metaphor to express their collective ignorance. (1998)

 

 

The Issue of Trust

It is significant for public administration that the Constitutional ethic grows out of an approach to government based upon—and structured to so as to minimize—distrust.  The battle to separate from England was triggered by distrust of King George III and the British Parliament.  The weak government of the Articles of Confederation was rooted in distrust of central authority; the Constitution of 1787 was the result of distrust of both weak decentralized government and “majority factions” that could infringe upon the rights of individuals. In fact, our entire constitutional machinery—separation of powers, checks and balances, federalism, bi-cameral legislatures—grew out of an effort to address this fundamental suspicion of concentrated power, and the belief that abuses of power are likely in the absence of structural constraints on administrative behavior.

This mistrust could be considered constructive, since it led to the creation of institutional limitations on abuses of power.  But a different form of distrust has quite negative implications for democratic governance: distrust of individuals who are in a position to abuse power for personal gain or to engage in other forms of self-dealing.  That sort of mistrust is corrosive.  It generates public suspicion that those who participate in government are corrupt. When such suspicion or cynicism becomes pervasive, it becomes much harder for government to generate citizen engagement, let alone the voluntary compliance necessary to achievement of public purposes (Scholz 1984; OECC 2000). If it is important for citizens to believe in the honesty of those who serve, if it is important that most officials be viewed as trustworthy public servants, it is obviously important that government officials not only be honest, but that they be seen to be honest—both personally honest and honest in their fidelity to the ethics of public service. And that raises the subject of conflicts of interest.

 

Conflicts of Interest

Recognition of the problem of conflicts goes all the way back to John Locke, who argued that individuals could not be judges in their own cases, because it is human nature to abuse authority. To a large extent, concern about conflicts of interest is about checking that very human tendency to self-interest and partiality. That concern—that government power would be misused for personal or political gain—is at the very root of our constitutional system of checks and balances. As our society has become more complex, our understanding of the Founders’ concern has evolved. Forty or fifty years ago, a conflict of interest would have been defined as a situation where a person makes a decision in his official capacity that results in personal financial gain.  Classic examples include the purchasing agent who hires a company in which he is a major shareholder, or the city council member who buys property in a certain location because he knows ahead of time—and ahead of others—that the city plans to build a new park on the site. When the council member sells the land to the government for a nice profit, she benefits from special insider knowledge garnered by virtue of her position as a decision maker. That classic definition of conflict of interest required that one personally profit from an official decision.

The concept has a far broader meaning today.  At the very least, it now includes conflicts of roles or duties—precisely the sort of conflict that led the Founders to create our system of checks and balances. Most ethicists today believe a conflict of interest exists when there is a clash in duties owed—where an individual has obligations to others, and those others have interests that are at odds with each other (Kennedy & Schultz 2011; Cooper 2006; Stark 2000).  Today, scholars recognize that public officials fill at least two roles–one as a government official ethically required to serve the public interest, and another as a private citizen or employee–and that the duties owed by virtue of those roles can—and often do—conflict, as in the Indianapolis case cited above.

A number of scholars have described how understanding of what constitutes a “conflict” and an “interest” has expanded over time (Kennedy & Schultz 2010). Increasingly, conflicts of interest are now conceptualized as a form of biased judgment.  If—due to some particular interest or belief—a public official is incapable of rendering a fair judgment or decision, the existence of that bias may constitute a conflict of interest.  This definition of a conflict is rooted in the ideal of government impartiality addressed by Locke and others, an ideal embedded in our Constitutional Culture. In a highly polarized political environment that increasingly rewards politicians with rigid ideologies, this sort of conflict is anything but an abstract concern.

Another aspect of current understanding of what constitutes a conflict of interest is that a conflict need not be personal. Institutional or organizational self-interest can also be a form of conflict.  James Madison and the other constitutional framers understood the concept of an organizational conflict quite well. They recognized that people working in government would inevitably be partial to their own agency and branch.  They addressed this problem structurally, with a variety of checks and balances, including, importantly, the separation of powers, on the theory that the self-interest or “team loyalty” of those working in the three different branches of government would operate to constrain that favoritism.

In the last few years, the Wall Street financial scandals have highlighted these organizational conflicts of interest.  In those cases, supposedly independent stock analysts and rating agencies employed by investment houses were under considerable pressure to give favorable reviews of stocks their companies were selling or rating.  Even if they didn’t receive special bonuses from giving positive reviews, there was an overall institutional incentive to ignore red flags—an organizational conflict of interest. (It is also worth considering what role organizational loyalty paid in the 2011 Penn State child molestation scandals in which people allowed their loyalty to the sports program to over-ride their duty both to the law and to innocent children who were victimized.)

This institutional understanding of conflicts also applies to improper relationships between government agencies and vendors, to take just one example.  If an agency has developed too close a working relationship with a vendor—to the extent that the vendor will have difficulty providing genuinely impartial assistance, or the agency will have difficulty providing appropriate oversight—there is a conflict of interest.  This conflict, a form of biased judgment, occurs even if no specific individual stands to make money.  The conflict in this case is less about personal benefit than it is about institutional bias, but it is no less corrosive to the public trust, and no less a breach of public sector ethics.

Yet another type of conflict may be unique to the public sector. It isn’t even necessarily an actual conflict of interest. It is the appearance of impropriety. Increasingly, government ethics codes address not only actual conflicts, but specific situations or decisions that lead to the appearance of impropriety. A typical “appearance of impropriety” provision reads:

To maintain public confidence in County government, County employees carry out official duties in a manner which avoids both actual conflicts of interest and the appearance of conflicts of interest. To this end, employees regularly monitor their own conduct to be alert to the possibility of actual or apparent conflicts of interest. When an actual or apparent conflict of interest is presented, appropriate steps are taken to eliminate it. When in doubt as to whether a conflict of interest exists, County employees should err on the side of assuming that a conflict exists. (Dakota County, Minnesota 2009)

Such an appearance of conflict might arise from personal friendship or family relationship. If, for example, an official’s relative is bidding on a contract, there is an appearance of a conflict if that official is involved in awarding the contract. The relative may have been the low bidder and the official may have meticulously followed all applicable procedures. But if citizens see a public administrator awarding a contract to his relative, the facts will not matter. There is a perception that favoritism was involved and therefore an appearance of impropriety. Our entire constitutional system of checks and balances was devised to minimize the abuse of governmental authority and to assure citizens that public affairs were being conducted in the public interest—to keep government both trustworthy and trusted. When public administrators don’t understand the importance of, or reasons for, that constitutional principle, when they act in ways that give rise to the appearance of impropriety, they violate a basic constitutional norm.

Similar observations may be made with respect to the issue of gifts. Gifting, especially in the public sector, is ethically problematic. (Kennedy and Schultz 2010) The public understands that just as there are no free lunches, there are no free gifts.  Gifts, even if given freely and without any nefarious intent, are not without expectations of reciprocation. (Anyone who has received a Christmas present from someone to whom they have not sent one understands the power of gifts.) A gift requires both a thank you and reciprocity—generally with something of similar or greater value. The issue is not the market value of the gift, although its size and timing may lead to serious questions about its intent and whether it actually is a bribe.  Instead, gifting in a professional setting raises problems of conflict of interest, bias, and poor judgment that can give rise to an appearance of impropriety and self-dealing.

Gifts are especially problematic when they are from lobbyists to government officials. Gifts to lawmakers (such as meals, junkets, and other gratuities) smack of influence peddling and buying of votes, and raise concerns that improper influence is determining which bills are heard or squashed, how favors are returned, and how earmarks are allocated—that the mechanics of democratic decision-making are being subverted for private gain.   If a conflict of interest is a situation where interests or duties conflict, gifting can legitimately be considered a form of conflict.  Elected officials have a constitutional duty to serve their constituents; gifts from a lobbyist can put recipients in a position where they feel obligated both to the gift-giver and to their constituents.  In effect, accepting a gift creates a conflicting set of loyalties.  Once again, appearance trumps reality and undermines confidence in government objectivity. Even if there is no genuine conflict of interest, there is an appearance that the gift has compromised the decision-maker’s objectivity.

Actually, the problem with gifts is not that the recipient is personally benefitting in some significant way.  It is the confirmation of a public perception that individual citizens lack power and voice. Polls regularly confirm that large percentages of the citizenry believe public officials are more likely to listen to contributors than to citizens (Newport 2010; Jones 2002; CBS News Poll 2011; Jordan 2011); such attitudes do serious damage to the public’s faith in government and the political process—precisely the consequences that checks and balances were intended to avoid.

An especially troubling category of the gifting problem is what we sometimes call “pay-to-play”.  This refers to the expectation that individuals will make payments—essentially bribes or kickbacks—in order to participate in a governmental activity.  The most common type  involves campaign contributions made in order to secure access to an elected official or in order to insure that a bid for a government contract is successful—or at the very least, considered.

Pay-to-play may not be tantamount to bribery, but it creates concerns about bias, appearance, and all the other problems that gifts raise. As a result, in some states—New Jersey is an example—it is illegal for bidders on certain government contracts to also be political contributors (N.J.S.A. 19:44A-20.3 through 20.25, 2005).  Pay-to-play, besides raising the gifting issues noted above, is about unfair access and the manipulation of democratic processes.  It denies some citizens the ability to compete fairly because of an inability or unwillingness to make a special payment in order to get into “the game,” whatever the game may be. It makes a mockery of another core principle of our constitutional system: governmental neutrality.

These concerns with gifting and pay-to-play are not necessarily remedied with de minimis exceptions.  Small bribes are still bribes, and small gifts still can achieve their desired impact. If sociological claims are correct, small but frequent gifts can eventually affect attitudes (Lessig 2011; Cialdini 1993). Congressional ethics rules adopted in 2007 prevent the accepting of gifts valued at $50 or more.  While $50 is a small sum, cumulatively many of these gifts, whether from one recipient or many, can become valuable. Furthermore, there is evidence that the more gifts an individual accepts, the less likely she is to believe that accepting those gifts has any effect upon her behavior. (Kennedy and Schultz, 2010)  Worse still, in some situations, officials come to expect the gifts as a matter of course, and individuals who fail to provide them are excluded or discounted. At this point, gifting does not look all that different from the sorts of institutionalized systems of bribery and corruption encountered in some third-world nations that have earned justifiable scorn. Worse still, these practices are corrosive of the constitutional premises of American public service.

 

Conclusion

American citizens have a right to expect public officials to be servants of the public—to discharge their duties on the basis of what is in the public interest, not what will generate private gain. In the United States, behavior that is consistent with the public interest is by definition behavior that is consistent with the terms and underlying philosophical commitments of our Constitution. When there is widespread cynicism about the motives and behavior of public officials, when those officials are believed to be acting in ways that are inconsistent with their constitutional obligations, government legitimacy suffers, and with it, the voluntary compliance with law that makes governance possible. When the checks and balances designed to counter self-serving behaviors are believed to have failed, the term “politician” connotes a less than admirable person.  In such an environment, good people increasingly “opt out” of public service, initiating a vicious cycle in which increasing numbers of sleazy and/or unpalatable candidates reinforce public cynicism and make it ever more difficult for the legions of dedicated and honorable public officials. It is a cycle that must be broken.

If the status of public service is to be elevated, both the ethical behavior of public administrators and the public’s perceptions of that behavior must be improved. That requires that both public administrators and the public understand the constitutional bases of those ethics.

In an environment where the U.S. Congress has an 11% approval rating, it is not enough to point out that a very small minority of public servants acts in ways inimical to the public good, true as that may be.

The discussion of public ethics needs to be elevated and placed squarely within the constitutional culture. The constitutional obligations assumed by public servants should be made explicit, as should the explanation of why fidelity to those obligations—which are in addition to the more generally recognized elements of personal ethics–is so important. In order to accomplish that, we need to take seriously the obligation to improve American civic education—what David Rosenbloom has called “Constitutional Competence” and the National Task Force on Civic Learning and Democratic Engagement calls “Civic Learning.” Ultimately, an informed and civically-literate public is the only guarantor of ethical public service.

 

 

Endnotes

1 Former Rep. Randy “Duke” Cunningham pled guilty to tax evasion and conspiracy in 2009 and was sentenced to 8 years and 4 months in prison. It is estimated that Cunningham collected $2.4 million in money, goods and services during his tenure in Congress.

2 In 2006, lobbyist Abramoff pled guilty to fraud, tax evasion and conspiracy to bribe public officials. He spent 3 years in prison and upon his release, worked as an accountant at a kosher pizza restaurant and wrote a book.

 

 

References

Adams, G.B. and Balfour, D.L. 1998. Unmasking Administrative Evil. Thousand Oaks, CA: Sage Publications

Annenberg Public Policy Center Judicial Survey. 2007. Annenberg Public Policy Center. Retrieved from http://www.annenbergpublicpolicycenter.org/Downloads/20071017_JudicialSurvey/Survey_Questions_10-17-2007.pdf

CBS/Associated Press. 2009, February 11. Disgraced Rep. Gets 8 Years In Prison. February 11, 2009. CBS News Politics. Retrieved at http://www.cbsnews.com/stories/2006/03/03/politics/main1366161.shtml

CBS News Poll. 2011, June 28. United States of Influence. CBS News Poll. Retrieved at http://www.scribd.com/cbsnews/d/58857865-CBSPoll-United-States-of-Influence

Carpini, Michael Delli and Scott Keeter. 1997. What Americans Know about Politics and Why It Matters. New Haven: Yale University Press.

Cialdini, Robert B. 1993. Influence: The Psychology of Persuasion. New York: Quill William Morrow.

Cooper, Terry L. 2006. The Responsible Administrator: An Approach to Ethics for the Administrative Role. San Francisco: Jossey-Bass.

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Because Fair Isn’t Necessarily Balanced…

National Public Radio has just adopted new ethics guidelines. We can only hope they signal the beginning of a wide trend in the media.

The new code stresses the importance of accuracy over false balance; it appears–finally–to abandon the “he said, she said” approach (what I have elsewhere called “stenography masquerading as reporting”) that all too often distorts truth in favor of a phony “fairness.”

At all times, we report for our readers and listeners, not our sources. So our primary consideration when presenting the news is that we are fair to the truth. If our sources try to mislead us or put a false spin on the information they give us, we tell our audience. If the balance of evidence in a matter of controversy weighs heavily on one side, we acknowledge it in our reports. We strive to give our audience confidence that all sides have been considered and represented fairly.

One of my gripes over the past several years has been the abandonment of precisely this tenet of good journalism. A good example has been environmental reporting–how many times have media sources reported on climate change, for example, by giving equal time and weight to  the settled science and the deniers, without ever noting that the deniers constitute less than 1% of all climate scientists, and are generally regarded as a kooky fringe? That’s “balance,” but it certainly isn’t “fair to the truth.”

A few years ago, this sort of false equivalency was illustrated by one of my all-time favorite Daily Show skits. The “senior journalism reporter” was explaining the Swift Boat Veterans for Truth attacks on John Kerry to Jon Stewart. “The Swift Boat Veterans say this happened; the Kerry Campaign says it didn’t. Back to you, Jon!” When Stewart then asked “But aren’t you going to tell us who is telling the truth?”  the response was dead-on. “Absolutely not, Jon. This is journalism.”

Far too often, reporters pursue artificial balance at the expense of truth. If a Democratic campaign plays a dirty trick, reporters rush to remind their audience of a similar transgression by Republicans, and vice-versa. This search for equivalency may be well-intentioned, but it misrepresents reality and misleads those of us who depend upon the media for accurate information.

NPR’s recognition of this pernicious practice, and it’s new Code of Ethics, are a welcome sign that at least some journalists might be returning to Job One: telling us the unembellished truth.