Good-Will Hunting

The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society, by Peter W. Morgan and Glenn H. Reynolds, New York: The Free Press, 272 pages, $25.00

Can there be virtue in public service? For classical liberal critics of governmental power, it may be hard to envision how a person wielding state power could so much as pour morning coffee ethically. From such a perspective, public-sector ethics rules and regulations can be viewed as colorful bunting that works to obscure the cold marble edifice of the state. And yet, given that some form of governmental power is virtually inevitable, libertarians and fellow travelers should reflect seriously on the ethical hoops we make politicians, government bureaucrats, civil servants, public-sector contractors, and the like jump through. Since any use of the government's regulatory power should be consistent and justified by some good purpose, the fact that public ethics rules are often unwarranted and arbitrary is cause for concern.

The Appearance of Impropriety: How the Ethical Wars Have Undermined American Government, Business, and Society, by Peter W. Morgan and Glenn H. Reynolds, is a step in the right direction. As the subtitle suggests, this book makes a number of important points about the use and abuse of ethics rules in government and society, also addressing, among other issues, plagiarism investigations and the criminalization of ethics violations.

Morgan, a Washington, D.C.-based lawyer who has represented clients in federal criminal ethical investigations, and Reynolds, a law professor at the University of Tennessee, decry "appearance ethics"–that is, ethics rules that punish "looking bad" rather than "being bad." The authors maintain that the modern ethics regulation emphasizes petty rules and proper paper shuffling, rather than a careful examination of propriety. So, the U.S. Senate evaluates who has the right to office furniture purchased with excess campaign funds, "rather than [addressing] the undeniable conflicts of interest created by the donation and receipt of these funds in the first instance." They note that "appearance" rules not only fail to encourage good behavior but work to obscure the truth, making real reform difficult.

The authors provide a good discussion of the federal criminalization of practically everything–including broad and vague ethics standards–through wire fraud, mail fraud, conspiracy, and false statement crimes. They cite a 1990 estimate that 300,000 federal regulations are criminally enforceable. This figure includes federal ethics rules, many of which are complicated, riddled with loopholes, and difficult (if not impossible) to follow. (Anyone doubting this should look at the Web site for the Office of Government Ethics, www. usoge.gov, which oversees the ethics programs of the executive branch.) The hazard is apparent, as Morgan and Reynolds point out: "Federal investigators and agency employees ask Americans about virtually everything these days. And virtually everything we say in response (sworn and unsworn, oral and written) is subject to federal criminal law. We remain relatively secure, however, because, again, federal prosecutors can't be bothered with prosecuting us…unless [we] amble a little further into the spotlight, questions are raised, and someone demands an investigation." The authors raise the question whether such complex and often arbitrarily enforced regulations discourage better people (who may lead more-complicated lives) from seeking careers in public service rather than those who tend to become craven masters of the system or undistinguished Milquetoasts.

Contrary to many good-government types who invoke bland abstractions such as "public mindedness" and "civic virtue," Morgan and Reynolds argue that an effective ethics system must work in conjunction with individual self-interest: "Successful systems are…those where self-interested behavior by individuals and organizations produces behavior that is good for society. Unfortunately, the ethical system created by [post-Watergate reforms] is not such a system." Instead, the authors argue that these reforms serve the interest of the Ethics Establishment that sprang from Watergate: the good-government interest groups that agitate for restrictions; the journalists whose careers are made by breaking scandals; and the consultants and ethics officers whose paychecks depend on their sophisticated mastery of arcane ethics rules and regulations.

Morgan and Reynolds also discuss the role that the expansion of government plays in the growth of the ethics morass: "The growth of federal power increased the role of special interests because it made lobbying the federal government vastly more attractive….And a government that is the target of so much lobbying looks less trustworthy….[T]he prevalence of such special interest pressure has caused many Americans to fear, rightly, that many federal programs are simply disguised ways for the well-connected to pick their pockets, or otherwise push them around."

Unfortunately, while the authors' analysis of the state of ethics rules is generally accurate and provocative, they rarely devote enough pages to fully explore a given topic. While the book is not short, 272 pages are barely enough to scratch the surface of the broad and complicated issues under discussion. The results are often spotty.

For instance, Morgan and Reynolds discuss the damage to professional reputations caused by the reckless statements, tireless hounding, and strategic leaks of glory-seeking ethics enforcers. Specifically, they spend a few pages on efforts by the office of Rep. John Dingell (D-Mich.), once chairman of the Investigations Subcommittee of the Committee on Government Operations, and two prominent government researchers to skewer Thereza Imanishi-Kari, a Tufts University research scientist, who was accused and later cleared of falsifying lab results in a federally funded 1986 paper published in Cell. The case–a good example of how zealous politicos can use technical ethics rules to build their own careers by ruining the careers of others–deserves a more extended discussion.

The authors' too-brief treatment of the affair leads them to resort to ad hominem attacks rather than relying on convincing evidence. At one point, for instance, Morgan and Reynolds refer to Imanishi-Kari's antagonists as self-styled "fraudbusters" who previously pursued "undistinguished work researching the nervous system of snails." The authors also describe the professional damage endured by Nobel prizewinning scientist and Imanishi-Kari co-author David Baltimore. Baltimore's spirited (and later vindicated) defense of his co-author prompted criticism from Dingell's staff and some scientific colleagues (who were no doubt mindful of their own dependence on federal funding.) Eventually, Baltimore resigned his position as President of Rockefeller University in 1991.

Similarly, the authors touch upon what a nuisance the bounty-hunter character of the False Claims Act–which rewards informants who report "fraudulent" government contractors–has proven to be. They also observe that loopholes in the congressional gift rules permit regulated interests to continue to fund travel getaways for favored members. But such references are too abbreviated, leaving the reader with just a laundry list of inadequacies, rather than an in-depth understanding of particular circumstances.

Morgan and Reynolds argue that such rules prevent real reform. They say the gift restrictions, for instance, "prohibit our examining–much less attacking–the source of the ethical problem: the overwhelming degree of congressional dependence on the financial contributions from lobbyists' clients." Leaving aside for the moment that campaign contributions are regulated by a separate set of Byzantine laws, it remains unclear how congressional gift restrictions prohibit the punishment of bribery.

Perhaps more important, the solutions proposed in The Appearance of Impropriety are less than fully formed. Hence, as an alternative to "appearance" rules, Morgan and Reynolds encourage us to look at motive as the one legitimate ethical referent. But absent mind-reading capabilities on the part of ethics enforcers, it is hard to understand how this recommendation can be implemented.

In any case, the central ethical concern for the public seems to be that government officials apply uniform, well-known criteria fairly. Since we can't revisit every governmental decision to make a determination of motive, we recognize that some situations present a moral hazard that ordinarily skews the decision-making process. As a result, our laws view some acts as per se "bad": for example, granting government contracts to businesses in which one has personal financial interests. In some sense this approach focuses on "appearances," since we don't try to inquire whether the bureaucrat meant to line his own pockets. But "per se" rules have the virtue of providing clear criteria regarding what conduct is "bad" so that the decision maker–and any sycophants or privilege seekers–know what they can't do.

Morgan and Reynolds are silent regarding what substantive ethical standards they find legitimate. While they note that the present system elevates procedure over substance, they aren't ready to specify how an ethical public servant ought to behave. This is a frustrating lapse in analysis: It is not enough to assert that "right" and "wrong" should be self-evident–a number of postures that would be clearly "right" in a private context (e.g., returning friends' favors, helping family before others) are not acceptable when practiced by governmental officials.

The authors are correct that our present ethics system serves mostly as a tool for political advantage and a trap for the unwary. But ultimately, they do not make the case that the "appearance standard" is to blame, or that replacing it with a "motive standard" would provide a solution. In the case of the Imanishi-Kari scientific "witch hunt," for instance, a "motive" form of ethical regulation would not have saved her from enemies apparently willing to lie. Similarly, it seems unlikely that revising the "appearance" basis of many congressional ethics rules would reduce the number (or raise the quality) of complaints filed with congressional ethics committees. It is also far from clear that a "motive" standard would provide executive branch officials with sufficient guidance to order their daily activities. While The Appearance of Impropriety catalogues a number of valid ethical trouble spots, the solution it offers does not deal with the fundamental problems of imposing fair behavior in an administrative system that can exercise largely unchecked control over the smallest details of human activity.

Allison R. Hayward ([e-mail]) practices election and government ethics law at the Washington, D.C., law firm of Wiley, Rein & Fielding. Nothing in this review necessarily represents the view of the firm or its clients.