Ethics

I attended the Commission on Public Integrity's hearing on its “Staff Legislative Proposals” on September 8, 2009, at the Legislative Office Building. There's all kinds of things I could write about that oddly magnificent building, but I was unfortunately distracted by the hearing itself.

There was something important missing there that, at the time, I just couldn't quite put my finger on.

It wasn't the fact that whomever it was actually conducting the hearing (I believe this would be Commission Chair Michael G. Cherkasky) introduced the Commissioners to his right and rattled off 6 names even though there were only 5 people to his right. It wasn't the fact that I wasn't sure if I was in the right place or not, because the announcement listed “Meeting Room B” when it meant “Hearing Room B,” and because there were no placards outside the room that explicitly stated what event was being held there. Or because the witness list they handed out lacked a header saying something like “Witness List of the Hearing on the Commission on Public Integrity's Staff Legislative Proposals.” It wasn't the fact that at least half the attendees were, from what I could tell, there mostly to hear the Chair's post-hearing remarks defending the Commission's existence and railing against the Assembly's new ethics bill.

No, it wasn't all that. I didn't put my finger on what was missing until I did some reading later on, on political ethics generally, and then it hit me.

The hearing, the Commission's work in general, and the halting, half-hearted discussions that have been held about the issue of political ethics in New York State in recent years, were all being conducted in the near-total absence of any kind of theoretical idea or conception of what we want ethical politicians to be. Hardly anyone has given much thought to what these ethical politicians will “look” like, what they will do, how they will conduct themselves.

We may I suppose take as a given that ethical politicians won't openly, or even covertly, seek or take money or gifts in direct exchange for votes or influence, be that money in the form of campaign contributions or out-and-out bribes. But, as soon as we leave that clear territory, the waters get more murkier than we like to admit. Will these ethical politicians be allowed to have outside business interests at all? If so, are they to be allowed to associate with other businesses who have business before New York State? Should lawyers have some kind of privileged status, wherein it's presumed that their outside business interests don't interfere with their public role? (Because that's how it is now, you see. You can't buy Speaker Silver dinner, but you can fire his law firm.)

Perhaps, it's best to keep even the appearance of impropriety away from Albany. So let's say we decide to bar our public officials from all outside business interests. Are we then prepared to pay legislators, say, $125,000 a year plus more “lulus” in order to make up for the fact that they could likely make at least that in the private sector? Remember that many legislators are lawyers, or have Master's Degrees, or have successful private businesses. In fact I'll bet some of them could to better financially in ordinary state service than they are doing in the State Legislature. Though granted it would take many years to get to that salary level in the civil service, once they got there they would find the work steadier, the situation more rational, and the possibility of sudden employment even more remote. Though we all know that incumbents tend to get re-elected, recent events have shown us that incumbency isn't what it once was.

What was missing from the hearing, and from all discussions of the issue so far that I've heard, was any kind of consideration of the big picture issues of political ethics. Indeed, apart from brief discussions between some of the Commissioners and some of the witnesses (mostly a representative from the Business Council), there appeared to scarcely be an acknowledgement that such issues existed at all.

I didn't really notice that, though, until after I did some reading. After a bit of reading, the absence was suddenly glaring. It made me wonder how much, if any, reading on the topic the Commissioners had done.

The first book about political ethics I read this weekend was Three Men in a Room (2006), by former New York State Sneator Seymour Lachman. That book actually didn't help as much as I'd hoped. Lachman is a Political Scientist, and a former State Legislator, so I considered his book likely to provide insights both practical and theoretical.

I was wrong. In fact, reading this book made me question how good Lachman's Political Science education could possibly be. He was shocked, shocked I tell you, to see a political culture in Albany that was leadership-centric! He was shocked that what he encountered in Albany didn't match the theoretical ideal of democracy!

I'm pretty sure that there has not been a single legislative body in the history of humanity that has matched the ideal. That's why it's called an “ideal.” This includes the Athenian Assembly, which founding father James Madison described as a “mob” in Federalist Paper # 55. “Had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob,” wrote Madison. I'm pretty sure that "mobs" are considered bad for democracy.

I think it's safe to say that James Madison didn't expect any lawmaking body to be ideal, including the U.S. Congress that he had basically designed in the Constitution, and the design of which he was defending in the Federalist Papers. It's unclear to me why Seymour Lachman would be shocked that the New York State Legislature wouldn't match an ideal image, when Madison didn't have that expectation of either the Athenian Assembly or the U.S. Congress. Further, Lachman's doctoral dissertation dealt with the legislative process (it was on Congressional funding of education programs). Lachman, in short, should have known better. This is not to defend Albany or its odd political culture, but I'm shocked by the fact that Lachman was shocked by it.

Thus, one reason that Lachman's book wasn't as useful for understanding political ethics as I'd hoped it'd be was its strange naivete. Lachman seems to have had expectations that no real world legislature, not even the Athenian Assembly, could meet.

Lachman also made a critical error that someone with a PhD in Political Science shouldn't have been capable of making. When most people speak of political ethics, we really don't care all that much about ethics as an independent issue. What we care about is achieving certain results and seeing certain policies enacted. A politics that fails to enact policies we favor must be corrupt. A politics that does enact policies we favor must be honest.

Lachman made this error in his book. As a Political Scientist, he shouldn't have.

For example, Lachman bemoans the loss of the New York City “commuter tax” (pages 15-17), and cites it as an example of bad ethics in Albany. (As I understand it, the commuter tax was a special tax on people who lived outside of New York City but worked in it. The argument for it was that, while they were in the City, those people took advantage of the city's taxpayer-funded amenities, took up space and resources like everyone else, etc. The argument against it was that it primarily funded services and amenities that the payers couldn't possibly have benefited from.)

The commuter tax, Lachman suggests, was a victim of the desire of Assembly Democrats to elect a Democrat in a largely Republican, suburban Senate District. While this may be true, I've never looked into this nor am I ever likely to (I don't care that much, frankly), is it really bad legislative ethics? No one with a PhD in Political Science should be surprised that politics plays a role in legislative outcomes. Anyone who thinks that politics shouldn't play such a role is extremely naive, and doesn't get the whole “politics” thing. Lachman also speaks badly of public employee pension “sweeteners” (I didn't write down the page numbers for that one) and of David Paterson's coup against then-Minority Leader Martin Connor (pages 105-107).

Is it really bad ethics when a policy you disapprove of is enacted, whether it's pension sweeteners or ending the commuter tax? Can't it be that you just lost the debate? Is it bad ethics for a legislator to execute a successful coup against ones his or her leader? Or is that just a case of deciding that the current leader should no longer have a job, and then seizing an opportunity.

Robert Roberts (no that name is not a joke) and Maria Dasi wrote a book called From Watergate to Whitewater: The Public Integrity War (1997), wherein they argued that recent fights over ethics have by and large been extensions of pre-existing ideological and partisan conflicts. Progressives (their term, others use the term Liberal to mean the same thing) see “corruption” as a bi-product of “big money” in politics, and tend to seek ethics reforms that reduce big money's presence. Conservatives tend to see “corruption” as an inevitable bi-product of the increasing size of government, and tend to seek smaller government both as a policy end and as ethics reform. Both sides end up spending most of their time trying to develop new ethical systems and mechanisms (special prosecutors and the like), rather than asking the truly fundamental questions.

Upon reading this book my mind recalled a book I had read long ago, called Politics by Other Means by Ginsberg and Shefter (the most recent edition of this book seems to date to 2002, but the edition I read was older than that). This book had a very similar thesis to Roberts' and Dasi's, that the machinery and language of ethics had become just another means of partisan conflict. If you can't beat your opponent at election, investigate him. Bill Clinton in particular was a victim of the politics of investigation.

I also picked up philosopher David Wood's The Step Back: Ethics and Politics After Deconstruction (2005). This book is insightful and potentially important to the ethics debate, and it helped me put into words certain thoughts I'd been having that I had, hitherto, been unable to articulate. However, the problem is that David Wood is a philosopher, writing in the way that modern philosophers write, and writing mostly to his colleagues in philosophy. This is to say that his work is nearly-incomprehensible to a non-philosopher like me. His chapter titles are hard to understand, let alone his main text.

However, in between the excessive use of the jargon of academic philosophy, David Wood gives us some remarkable insights. He begins his book with this:

Whether we try to speak about Ethics or take up a specific ethical topic such as justice or responsibility, it is not hard to conclude that we have arrived on the scene too late, that our access to what is fundamental to these issues is fading. While we can still speak about those things, even in interesting ways, it can seem that something vitally important has been lost – as if all one knew about plants came from frequenting a shop selling cut flowers. (Page 1)

He goes on to argue, to the extent that I can decipher him, that we (by which I think he means America and Americans), no longer ask the fundamental, philosophical questions of ethics. Or anything else for that matter.

We live in an infantilizing culture, sadly one of our healthiest exports to the rest of the world. How? It promotes cartoon-level simplifications of complex problems, it confuses individualism with selfishness, imagines a freedom without responsibility, it cultivates an ever-reduced attention spawn, and it promotes ignorance and disdain of what is foreign – this applies to our own racial diversity, to relations between states, and to the rest of the world. (Page 190)

One need not look too far to see this “infantilizing” at work in the debates over New York State political ethics. The Commission on Public Integrity's “mocha protocol,” described in a previous article, is an excellent example. The Commission's “staff” legislative proposals are also good examples. They consist largely of redundant disclosures, and an attempt to bar all gifts from lobbyists to legislators, including holding receptions. Such proposals are nothing if not “cartoon-level simplifications of complex problems.” New York State has no obvious coherent vision of what ethics is, what ethics should be, what an ethical politician would be like, what he or she would do. We are asking small questions and are confusing the outcomes of politics with the ethics of politicians.

The small questions are critically important to ask, when the time comes. The “small” questions of ethics deal with important matters, such as how ethical guardians are to be established, and structured. But the point is that the big questions have to be asked first.

One point that David Wood didn't think of, however, is that it's partly his fault the big questions aren't being asked. Well, not his fault in particular, but his book is an inadvertent and amusing symptom of an important malady.

The people most qualified to help us answer the big questions about political ethics are Philosophers, Political Scientists, and the like. Retired politicians can help, can offer insights. But at the end of the day it's academics that are trained to ask, and answer, the big questions that we need, desperately, to think about. And they, sadly, are caught up in a trap of only addressing one another, rather than addressing the rest of us (who genuinely need their insights), and they do so often in a language that is nearly impossible by outsiders to decipher. David Wood's book, as insightful and potentially important as it is, contains maybe 3 or 4 paragraphs that are understandable to anyone but one of his fellow academics.

One reason we're having such difficulty asking, let alone answering, the big questions is that those most qualified to help us don't try anymore. Whether this is their fault, or ours, or both, I can't guess.

We need to settle the big questions before we undertake further attempts at ethics reform. We need to decide what “ethics” means beyond policy outcomes. If New York doesn't settle these questions, and settle them soon, we'll be stuck forever in a strange world of extremes. Behavior that's unethical by anyone's definition will continue, and paranoia will take the place of genuine, well-thought-out ethics reform.