ETHICS AND PUBLIC POLICY
Chandler, Ralph C.
ETHICS AND PUBLIC POLICY RALPH C. CHANDI.F..R A view from history and pubic administration During the past seven years public attention has been focused on the problem of ethics in an...
...California, in mandating the formulation of ethics codes by each state agency, includes a requirement that each agency enumerate the positions within the agency which could affect outside financial interests...
...This has proven to be a two-edged sword in American history...
...The question of how much discretion should he permitted civil servants, and how to make its exercise responsible, occupies a thoughtful place in current public administration literature...
...This kind of procedure i s flexible, and it seems infinitely more fair to the public administrator...
...Public administration's emphasis on a strong executive did not start with Luther Gulick, but this Professor of Municipal Services and Administration at Columbia U. certainly articulated the doctrine in a way which admirably served the disposition of Franklin Roosevelt, as well as the needs of the nation at that .time...
...Help, you understand...
...Another low point in the administration of public affairs in the United States came in the Harding Administration when Secretary of :he Interior Albert B. Fall was charged with accepting over $385,000 from the oil companies leasing the Teapot Dome reserves in Wyoming and the Elk Hills reserves in Cali[ornla...
...as "the toughest ethics code of any legislative body in the country...
...The historical record sustains the view that corruption is endemic in the American political system...
...But whatever Mr...
...It gives us a reason not to be cynical...
...Forty-six of the fifty states have enacted new ethics legislation in this period, or they have significantly amended existing laws...
...Alexander Hamilton had written in the Federalist Papers in 1788 that The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of society...
...Carter passed up the return flight on the Presidential jet and flew home on a more humble commercial aircraft...
...And love, Paul TiUich was to add sometime later, is the ultimate law because it is the negation of law...
...The expanse and abundance of America are largely responsible for that...
...Few laws could be written in broad and vague terms, leaving details to be worked out later...
...Rather than believe Lord Acton, that "power tends to corrupt, and absolute power corrupts absolutely," public administrationists preferred to believe Louis Brownlow when he said, During the whole history of the thirty-two presidents, not one has been recreant to his high trust-none has used his power to aggrandize himself at the expense of our settled institutions...
...There is only one sure thing about the moving target of ethical and political obligation: i.t is two sides of the same coin...
...Have we reached the point in our national history at which this is no longer a theoretical discussion...
...The former often delegates discretion to the latter...
...Law tries .to escape from it...
...Bank President Nicholas Bid61e came across with "loans" of $17,782.86 for Daniel Webster...
...Watergate was about power...
...The ethics legislation recently enacted is not going to solve the problem of corruption in American government, for several reasons...
...The act established a state board of ethics which renders both decisions and advisory opinions...
...One might wonder if the revelations of the Douglas Committee in 1951 would have produced the spate of ethics legislation apparent today if the news media had in fact covered those hearings as assiduously as the Ervin Committee was covered 22 years later...
...It is about money, while Watergate and the cult of the presidency have taken a quantum leap into a more insidious source of corruption than money...
...Some would argue from history that this apparently unprecedented attention to ethics in government is not unprecedented at all...
...Put in simple terms, previous corruption was about money...
...Most remarkable among the schemes of the agents of the Union Pacific Railroad was the creation of a bogus construction company, the CrEdit Mobilier, which distributed its stock to members of Congress in exchange for Congressmen looking the other way as the profits of the company reached enormous proportions...
...a leader of the anti-Nixon forces in the House, as saying he doubted whether the President would have been forced out of office "if the press had not desired it...
...It is tempting to formulate laws about conflict of interest and financial disclosure and feel that the ethics job has been done...
...Is there anything practical in this theological jargon...
...bets of Congress by officials of the Second United States Bank in the 1830s, to the scandals surrounding land acquisition by the Union Pacific Railroad in the 1870s, to Teapot Dome and Elk Hills in the 1920s, to the revelations of kickbacks in tax settlements by collectors of internal revenue in the 1950s, to the Watergate phenomenon of the 1970s, and many other instances in between, our national history can be read as a litany of avarice and greed...
...are right: corruption is endemic in the American sys.tem...
...The problem of administrative ethics continues to be one of discretion, of judgment, of interpretation, of definition of the public interest and pursuit of the public good...
...As Frank Getlein wrote in Commonweal in response I2 May 1978:$08 to the new ethics codes in the House and Senate: A code of ethics, after all, is something one believes in, or something the members of a given society subscribe to...
...These technicians are the people who know how to package and sell a candidate...
...A view from public administration leaves the same kind of question about federal and state legislation from another perspective: does the reform movement understand the bureaucratic and human context of the administrator's discretionary choices...
...On April 1, 1977, the United States Senate adopted 12 May 1978:302 an ethics code even broader than the House version, intending it by the end of the first session of the 95th Congress to cover all federal employees...
...The changing attitude of the staff, with its steady accretion of command and control power, was described by George Reedy, President Johnson's press secretary, as "the heel click at the other end of the wire...
...Fletcher agrees with Alfred North Whitehead that "the simple-minded use of the notion of 'right or wrong' is one of the chief obstacles to the progress of understanding...
...From the time the Brownlow Committee on Administrative Management, of which Gulick was a member, recommended to President Roosevelt the establishment of an Executive Office of the President, the movement toward the President's increased command and control was also a movement toward the imperial presidency...
...In dealing with this situation, the administrator is subiect to a double hierarchy of authority, one impersonal and one personal, which defines his obligations...
...travel by lame duck members is pro.h.ibited...
...The types of problems that come before the Board of Ethics are not of venal people attempting to take advantage of their public trust, but rather conscientious public servants who have real questions about the propriety of their actions . . . . The people who present requests to the Board are honest people with real problems...
...He still will be tempted to fail victim to the arrogance of the technicist world view, especially if he is successful The legislative responses are appropriate enough...
...His tolerance for ambiguity remains low...
...his struggle for the right remains his most obvious, and admirable, characteristic...
...The political technician, on the other hand, typically has no such experience in democratic politics...
...There is a right and a wrong, of course, but most often there is son~ething in between...
...Three of the four remaining states, Nevada, New Hampshire and Vermont, have ethics legislation pending before their legislative houses...
...His loyalty is not to party or a principle but to the leader Commonweal: 305 in whose entourage he serves...
...Reflecting on the lessons of Watergate for public administration, James L. Sundquist noted that the profession devoted 40 years to aggrandizing presidential power...
...A third is that even if one and two above were not true, most of the new ethics legislation misses the mark anyway...
...For ethics presupposes a context of personal principle and of moral commitment which rules and rulesmakers cannot touch...
...Rousseau probably said it best when he said those who treat ~ politics and ethics apart will never understand either one...
...This is why the "plumbers" were forced to operate directly out of the White House...
...People tell white lies so as to be decent to others...
...At the federal level the House of Representatives on March 2, 1977, overwhelmingly adopted House Resolution 287, described by Speaker Thomas P. O'Neill, Jr...
...Commonweal: 309...
...If this were not so, legislatures would be paralyzed by interest group conflict...
...But Carl Sandburg said we're all liars...
...The bureaucracy, then, in working out the finer points of policy, often enters into the same kind of bargaining process as characterized the original policy discussion...
...Another is that the public administrationists are also right: discretion is not a suitable subject for legislation...
...love tries to embrace it...
...They are the public relations men, advertising men, television directors, fundraisers, speeehwriters, and organizaitonal experts who make up a personal campaign coterie not necessarily raisers, speechwriters, and organizational experts who candidate is successful, they accompany him into the corridors of power...
...Graham goes on to say that general law must be interpreted, ~emd that the courts seldom get around to definitive interpretations on the vast majority of issues which arise administratively...
...financial disclosure is widened...
...D.-Mass...
...The White House staff grew from 37 members under Herbert Hoover to more than 500 under Richard Nixon, and the Executive Office of the Presidency, with its proliferation of boards, committees and special groups, mushroomed from 1,175 in the late 1950s to roughly 5,000 at the end of 1976...
...This is the philosophy that in a corporate struggle the victorious faction takes over the company...
...Carter's predilections toward humility, he will find in time that .the presidency shapes him more than he shapes it...
...One is Joseph Fletcher's Situation Ethics, published an intellectual millennium ago, in 1966, and the other, the book of the prophet Jeremiah, written more recently in the 7th Century B.C...
...The law for him is instrumental...
...During this same period the Speaker of the House of Representatives, Jonathan Dayton (1798-1800), was driven from office for embezzling some $15,000 from the pay and travel allowance of members...
...Is Waterg~te unprecedented...
...There is freedom...
...Biddle also refreshed the bank accounts of 54 other members of Congress, including Henry Clay and John C. Calhoun...
...Forty-three states, for example, have legislated on conflict of interest and financial disclosure for public administrators...
...If the machine was a fount of favors which generated pofitical obligations paid on election day, it also generated something else: respect toward the public on the part of the practicing politician...
...and these were all 12 May 1978:304 proper activities of Puritan ethics...
...At the federal level, however, neither of the stringent ethics codes passed by the House on March 2 or by the Senate on April 1 of 1977 speaks across the separation of powers to aggrandized presidential power...
...Louis and San Francisco...
...The modesty of Jimmy Carter's initial days in 'office support this view...
...and (4) The requirement of public disclosure of the financial interests of public officials, candidates for office, and 12 May 1978:306 certain government employees and members of their immediate families...
...After he was publicly chided for so quickly abandoning the populist propensities of his electoral campaign in favor of the seductive perquisites of Presidential power, the chastened Mr...
...gifts from lobbyists are restricted...
...If it is only legislation, in fact, it is decidedly unethical...
...argued on the floor that "the necessity of the times," and the "climate created by the errant actions of a minority of public officials," demanded the Senate adopt such a code to restore public confidence in Congress...
...God knows what the Ten Commandments would have looked like if composed by a committee of proto-Talmudic scholars . . . . The reason Jesus got into considerable trouble with the theocracy of his day was that he maintained the law did not necessarily have anything to do with ethical behavior...
...Is the Watergate scandal so precedented in American history that indeed it exists on a continuum of scandal, and may not be qualitatively different from other scandals...
...He is also an ordained Presbyterian clergyman with ethics degrees from Union and Princeton Theological Seminaries...
...People lie because they don't remember clear what they say...
...True, it will make poten, tial violators more circumspect...
...and where is .the repository of the right but in the law...
...What of the men outside Government who suborn those inside i t ? . . . Who is more at fault, the bribed or the bribers...
...In the Republic the sophist Thrasymachus said the foundation of political authority is power...
...New York Times correspondent Hedrick Smith has written the following vignette to illustrate the sensitivity of the new President to the cult of the presidency which has developed since the early 1960s...
...The issue hung in the balance for some months in 1973 and 1974 as to whether the press and the United States House of Representatives would succdssfully remind the technicians that the people still own the company...
...Which of these liars are you...
...In this view it will take a long time before a President will again embark on any such headstrong foreign adventure as Lyndon Johnson undertook in Vietnam, or on any such exercise in megalomania as Richard Nixon undertook at Watergate...
...These are elected officials and professional administrators...
...Their policies, programs, instructions, rules, procedures, and day-to-day decisions may not always agree with the intent of the elected officials who broadly structured the law in the first place, or the courts who are too busy to define it...
...Socrates said that politics is also a system of obligations and a system of values...
...In the House and Senate codes, office accounts are banned...
...These have to do with our collective responsibility for what he describes as "the conquest and decimation of the Indian," slavery defended as a moral good, the child labor of the Industrial Revolution explained as the necessary price of progress, and the Vietnam War pursued as the logical result of "better dead than Red...
...From the Yazoo land fraud in the 1790s to the bribery of memI RALPH C. CHANDLER is an associate professor of political science and Field Service Coordinator in the Center for Public Administration Programs at Western Michigan University...
...In the same year Senator J. William Fulbright said of his investigations of the Reconstruction Finance Corporation: As our study of the R.F.C...
...Throughout the second half of the 19th Century there was a near fusion of economic and political powe r in the United States as railroad and other economic interests largely controlled several state legislatures, notably that of Iowa, and influenced a working majority in the United States Senate...
...A view of ethics from American history leaves the question of whether federal legislation has attacked the right problem: aggrandized presidential power...
...The student of public administration might ask at this point: Do these rather onerous reporting requirements with their resulting deprivation of privacy really address the ethical dimension of the job of the public administrator...
...How do we deal with those who under the guise of friendship accept favors which offend the spirit of the law, but do not violate the letter...
...That was a marginal statement even in 1947...
...Dirty play may continue, and the smart players may not get caught, but the defirdtion of politics as a sordid business did not receive the sanction of the commonweal...
...Likewise the states have acted vigorously to elevate their standards of public service...
...It is probably more constitutional, as well...
...So, practically speaking, let us not expect too much from the legislation...
...They much teach "its spirit, its moral essence," and then drawing himself up dramatically the professor adds, "Right and Wrong 10-A is one such stab in the dark...
...One could be steeped in the law and not love...
...The hierarchy of law (constitutional, statutory, administrative) is impersonal...
...Is the real ethical problem about money...
...But ethics is much more than legislation...
...Although Snyder, Commager and Sandburg are competent historians and base their value judgments on lives of scholarship and reflection, other jurors may prefer to have relevant facts laid before them for their independent determination of the prevalence of corruption in American government...
...President Carter has asked Congress to require annual public financial disclosure statements from top Executive Branch officials and to prohibit them from lobbying their former agencies for at least one year after leavlng government...
...Is it about the right problem...
...In this view the existential question comes to be: how can public administrators properly plant, bring to flower and keep weeded a personal code of ethical performance which both meets the requirements of the law and adequately takes into account the complexities of situations they encounter almost daily in the real world: situations which demand discretion and sometimes demand decisions on the margin of the law...
...We didn't have time for theory...
...Seven days later the House by a vote of 410-1 adopted a resolution to establish a ~lect Committee on Ethics to implement and write the code into statutory law...
...We were not entirely unprepared for the current tasks of public administration, however...
...none of your law and justice, but help...
...The administrative tools the Chief Administrator was given to use for the aggrandizement of his office: budgeting, legislative clearance and the preparation of governmerit reorganization plans, for example, were supplemented in the 1950s with a development public administrationists could not have foreseen: the rise of the political technician...
...When Luther Gulick and other public administrationists transposed the literature of business administration into the service of public institutions in the 1930s they had no idea that political technicians would eventually transpose the philosophy of corporate life into public administration as well...
...Polities is not just a power game...
...It sets ,a tone and a level of expectation which permeates the governmental organization...
...People like those two reporters who uncovered it for the Washington Post and the Post itself--they had discovered a whole new world...
...People lie in a pinch, hating to do it, but lying on because it might be worse...
...I favor ethics legislation, including legislation about conflict of interest and financial disclosure...
...There is the imperfectibility of man...
...So active have been the states in the ethics area, in fact, that the National Municipal League has established a clearinghouse in New York just to collect, classify and distribute legislative acts and executive orders now appearing on the subject...
...Thus what began as a series of amendments to the House rules is now intended to subject violators to criminal penalties and permit investigations of alleged abuses by federal law enforcement agencies...
...People make reputations overnight discovering some new scandal...
...The chain of direction or command, into which he fits somewhere, is quite personal...
...Theoretical discussions bore us...
...We do know how we ]eel in this country, and we did not like the feel of the sophist position at Watergate...
...Its truth doesn't have to lie in its practicality, but it does happen to be practical...
...The state legislation generally falls into four categories: ( 1 ) The specification of acts which are prohibited to public officials, candidates and employees...
...A law professor is telling his class that law schools must do much more than simply teach the law...
...That this should be so--that the Haldemans and Ehrfichmans should be the ones to help the President see that the laws are faithfully executedmis a direct result of the Pendelton Act...
...progressed, we were confronted more and more with problems of ethical conduct...
...In 1833, United States Senator Daniel Webster sent the following message to the president of the Second United States Bank, whose charter was before Congress for renewal: I believe that my retainer has not been renewed or refreshed as usual...
...His experience is not so much in ~ervice as in manipulation...
...And people Lie just to be liars for crooked gain...
...The former occurs when there has been a formal complaint filed with the board against a public official or employee...
...bribers kept their profits largely through the efforts of their sagacious lawyer, one Alexander Hamilton...
...We must simply admit at this point that there is no general rule of law save impeachment proceedings which can restrain a President from the abuse or misuse of power...
...Involved in the graft were two United States Senators, including Robert Morris of Pennsylvania, two Congressmen, and three leading jurists, including Associate Supreme Court Justice James Wilson...
...It can be bent or broktn, when necessary...
...That's why he balanced his ticket, secured advantages for his constituents, and served the "public interest" as he scented it...
...Good ethics legislation will facilitate solutions to these and other conundrums of statecraft...
...People lie because they can't help making a story better than it was the way it happened...
...In discussing ethical guidelines for professional administrators in the Public Administration Review, George A. Graham has pinpointed the problem of discretion: Where there is discretion, there is uncertainty, and there may be conflicting obligations and loyalties...
...Public officials" are of basically two types in the legislation and in practice...
...outside income from speaking engagements, articles and other sources is limited...
...He says we're all liars, just different kinds...
...In an article entitled "A Historian Looks at Our Political Morality," he prefers not to address individual culpability in our national past, but to inquire into certain presuppositional questions of national policy...
...4 View ]rom Public Administration Historians point to the systemic nature of corruption in the government of the United States...
...An influential new book entitled Corruption in the American Political System, maintains, for example, that corruption has been so systemic in the United States for so long that the reformers who not infrequently arise should be less interested in correcting the "evil man" the system occasionall~ produces than in restructuring the system itself...
...Carl Snyder in his book Capitalism the Creator calls the characterics of the sharpdealer the great forces in the building of America...
...And then, alas, there is original sin...
...ETHICS AND PUBLIC POLICY RALPH C. CHANDI.F..R A view from history and pubic administration During the past seven years public attention has been focused on the problem of ethics in an unprecedented way...
...A major source of profits was congressional grants to the railroad for completion of the final 667 miles of the Union Pacific...
...Only Mississippi has taken no action in this regard...
...The Michigan experience has been evaluated as follows: The mere fact that a public official might be evaluated against ethical criteria may result in many officials avoiding the risks of improper conduct because of the difficulty of carrying it off without disclosure and public censure...
...In his book It Didn't Start With Watergate that unobjective journalist Victor Lasky quotes Fulbright as saying The Watergate was ballooned up into an enormous issue...
...It fitted naturally, he said, with the style of a royal court provided with a swimming pool, masseur, telephone in every bathroom and a helicopter at the push of a button, all to serve the needs of a single man and shield him from ordinary discomforts...
...They're still doing it, they just love it...
...Or is the press coverage the only thing different about it...
...Please do not misunderstand me...
...The occupant of e~ich such position must file an annual statement of his financial status to show it has not been improved by agency decisions...
...The speculators won out, finally, because the Marshall Court held invalid an act of a subsequent Georgia legislature repealing the sale...
...In 1936 he wrote "It is clear from long experience in human affairs that . . . a single directing executive authority" is mandatory for solving the problems of goverumental organization...
...Many practitioners would still agree with Paul App...
...Two books might occur to the reader at this point...
...We had before us in the 19th and early 20th Century the practical problems of nation-building, moneymaking, inventing, fighting wars, technologizing, and doing right...
...A political candidate still must practice the public relations game of image manipulation...
...2) The enumeration of codes of ethics applicable to public servants...
...A few days after his election in November, Jimmy Carter boarded the airborne palace called Air Force One for a flight to a vacation hideaway and declared with obvious relish: "This is the one I've been waiting for...
...What sort of liar are you...
...Public administrationists have looked at Watergate and related shenanigans for four years now and concluded in some quarters that these events also represent a breakdown of public administration theory...
...The houses of Congress, however, have not only passed comprehensive codes for their own members, but are currently taking steps to have the provisions of these codes enacted into statutory law to cover all federal employees...
...It's not okay to play dirty...
...it is not something imposed, it is something observed because it is thought to be right...
...This no man's land of what is lawful, or what is wise, or what is in the public interest, is where the difficult ethical issues lie for public administrators...
...chairman of the commission which drafted the House code, said it was designed to assure that "members are not cashing in on their positions of influence...
...New York has a similar requirement for selected state employees, and has a Board of Public Disclosure to monitor compliance...
...If Watergate is different, is the difference only in the magnitude of the President's personal involvement in it, and in the lies he told...
...The Federal Bureau of Investigation, notably the Criminal Division, the Internal Revenue Service, and the Central Intelligence Agency in fact acted as a restraint on the President...
...That eminent philosopher Garry Trudeau makes the point in a Doonesbury comic strip shortly after Watergate...
...Without an adversary proceeding he or she can receive guidance...
...It is as though the United States has finally come to Plato's discussion of the foundation of political authority...
...And as a final example, in 1951 the Doug~las Committee on Ethical Standards in Government disclosed a decade of kickbacks in tax settlements by collectors of internal revenue in New York, Boston, Detroit, St...
...In that hasty retreat and in other ways, the new President has shown he understands that informality and openness are needed in his Administration . . . . Sundquist rightfully observed that public administrators can point with pride to the fact that career civil servants were tarnished very little by Watergate...
...But there is also American man's stubborn refusal to admit that the best he can do is to approximate justice in his institutions and in himself...
...it is absolute because i.t concerns everything concrete...
...Commager concludes that " . . . we must square our conduct with principles of law and of morality . . . . " Carl Sandburg in his role of poet as well as historian has a kinder indictment...
...Representative David R. Obey (D.-Wis...
...Watergate is different, but not primarily for the reasons listed above...
...In many ways, however, this represents a retreat into legalism...
...Consider the opinion of Henry Steele Commager...
...and so forth...
...Lasky further quotes former Representative Jerome R. Waldie (D.-Calif...
...This is not entirely an unethical position...
...Again, public administration theory is of doubtful help...
...and Jeremiah summarizes the accumulated wisdom of ancient Israel in the 31st chapter of his book, in which he represents Yahweh as saying God's law would be planted deep within his people...
...3) The requirement of certain procedures to prevent conflicts of interest...
...But what of the structure of things now...
...and in the next place to take the most effectual precautions for keeping them virtuous . . ." Commonweal: 303 The ink was hardly dry on the Federalist Papers when the Yazeo land fraud case came to light in 1795...
...A piece of legislation which appears to appreciate some of the dilemmas of public administrators is Michigem's Public Act 196, enacted in 1973...
...The latter occurs when a public official finds himself _9 in a questionable position'regarding what constitutes propriety in handling the public's business...
...It can also be argued, looking through a theological window, that since complex governmental systems such as ours are changed only incrementally, and since a basic restructuring of the American political system is hardly possible short of an unlikely revolution, we are left to live in the short-run of trying to achieve approximate justice, and that we must work out even approximate justice in ambiguous circumstances...
...If it be wished that my relation to the Bank should be continued, it may be well to send me the usual retainer...
...It will make President Carter more humble...
...Is the corrective legislation hitting the mark...
...Majority Leader Robert C. Byrd (D.-W.Va...
...Thus administrators must delineate the law...
...One is that the historians...
...Least of all is a code of ethics something drawn up by a committee...
...The following data represent part of the basis for the contention by historians that modern legislators are dealing with an endemic problem...
...Where there is no patronage in the public service, there is no effective party machinery...
...The state of Georgia, its legislature bribed by New England financiers, sold to private speculators most of what is today the states of Alabama and Mississippi at one and one-half cents an acre...
...eby's judgment about presidential power in 1945: "through Congress, and through elections, it is a power popularly controlled...
...Patronage and its twin, corruption, were countenanced in the big city machines of America because, in the words of Martin Lomansey, the political boss of Boston in 1915: I think that there's got to be in every ward somebody that any bloke can come to---no matter what he's done--and get help...
...He stayed in office that way...
...They so subsumed the more modest interests of our founding fathers and an occasional jurist, however, that the processes of defining probity and managing scarcity were mental and administrative exercises we didn't get much experience at...
...He also asked that a special prosecutor's office be created to prosecute misconduct by high-ranking Executive Branch officials and that an Office of Ethics be established within the Civil Service Commission...
...It is against this reality that the ethics legislation in the states ought finally to be measured...
...And so legislative bodies all over the country, embarrassed and quickened by an historical record of scandal culminating in Watergate, have acted to bring politics and ethics back together again...
...and for a very long time ethical and political systems have tried to reach some sort of compromise with it...
...The story is celebrated and involved and eventually resulted in a major Supreme Court decision, Fletcher v. Peck (1810...
...But dependence upon bureaucratic restraints to assure ethical behavior on the part ef the Chief Administrator is a thin reed indeed...
...it would be written not on their law books, but on their hearts...
Vol. 105 • May 1978 • No. 10
