Ethics and Political Practice: Perspectives on Legislative Ethics (Routledge Studies in Governance and Public Policy, 2)

Ethics and Political Practice Perspectives on Legislative Ethics

ROUTLEDGE STUDIES IN GOVERNANCE AND PUBLIC POLICY

1 PUBLIC SECTOR ETHICS Finding and Implementing Values Edited by Charles Sampford and Noel Preston with C-A Bois

2 ETHICS AND POLITICAL PRACTICE Perspectives on Legislative Ethics Edited by Noel Preston and Charles Sampford with C-A Bois

Ethics and Political Practice Perspectives on Legislative Ethics

Edited by Noel Preston and Charles Sampford with C-A Bois

THE FEDERATION PRESS | ROUTLEDGE

This edition published in the Taylor & Francis e-Library, 2003. Published in Australia, New Zealand and Papua New Guinea by The Federation Press 71 John St, Leichhardt, NSW, 2040 PO Box 45, Annandale, NSW, 2038 Australia Ph: 61 (02) 9552 2200 Fax: 61 (02) 9552 1681

Published in the United Kingdom and the rest of the world by Routledge 11 New Fetter Lane London EC4P 4EE Simultaneously published in the USA and Canada by Routledge 29 West 38th Street New York, NY 10001

National Library of Australia Cataloguing-in-Publication data: Ethics and political practice: perspectives on legislative ethics. Bibliography. Includes index. ISBN 1 86287 291 0 1. Political ethics. 2. Legislative bodies—Ethics. 3. Politicians—Professional ethics. I. Preston, Noel. II. Sampford, CJG (Charles JG). III. Bois, C-A. (Series: Routledge studies in governance and public policy). 172.2 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data ISBN 0-203-02178-9 Master e-book ISBN

ISBN 0-203-20569-3 (Adobe eReader Format) ISBN 0-415-19482-2 (Print Edition) Individual © 1998 Individual contributors Editorial and volume © 1998 National Institute for Law, Ethics and Public Affairs This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to the publishers.

Contents About the Contributors

vii

Introduction

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1

Democracy and the Ethics of Representation John Uhr

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‘Appearance’ as an Ethical Standard: Its Consequences for US State Legislatures Alan Rosenthal

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Strange Distinctions: Legislators, Political Parties and Legislative Ethics Research Rodney Smith

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Politics, Public Responsibility and the Ethical Imperative WG Hayden

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Politicising Ethics: Scandal and the American Experience Maureen Mancuso

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Ethics Counsellor to the Government: The Canadian Experience Howard R Wilson

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Watchdog or Attack Dog? The Media, Politics and Ethics Stephen Tanner

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Changing Institutional Ethics: The New Zealand Case Colin Hicks

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Constructing Codes: Pitfalls and Challenges Meredith Burgmann

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CONTENTS

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Insiders’ Viewpoints Parliamentary Ethics, Political Realities Michael Beahan Codes and Their Enforcement: Necessary but not Sufficient for Ethical Conduct Cheryl Kernot

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Legislative Ethics: Challenges and Prospects Noel Preston

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Appendix 1: Codes of Conduct and Relevant Statutes and Reports

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Appendix 2: Suggested Readings

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References

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Index

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ABOUT THE CONTRIBUTORS

C-A BOIS is currently working in academic publishing. With degrees from the United Kingdom, the United States and Japan, her teaching experience has included political studies and social and economic history. She has undertaken research in governmentindustry relations, the notion of rights in Asian constitutions and degrees of corruption and partiality in Japanese colonial rule. Since moving to publishing, she has edited works on public sector and legislative ethics, human rights, democracy, postmodern and feminist legal theory, constitutional interpre tation and cross-cultural awareness in education. MICHAEL BEAHAN was recently Visiting Fellow attached to the Centre for Development Studies at Edith Cowan University, Western Australia. Until August 1996, he was President of the Australian Senate and for nine years a Labor Senator representing Western Australia in the Australian Federal Senate. His experience both in the Senate and previously as State Secretary and National Vice-President of the Labor Party has given him valuable insights into the nature of Parliament and parliamentarians. He has developed a reputation as a constructive critic of both. MEREDITH BURGMANN is Chair of the New South Wales Legislative Council Standing Committee on Parliamentary Privileges and Ethics, Australia. Formerly a Senior Lecturer in Politics at Macquarie University, Sydney, she specialised in industrial relations. She has published widely on women’s issues including women’s wages, as well as foreign affairs, industrial relations and Aboriginal issues. Her current interests include civil liberties, prison reform, women’s issues and Aboriginal rights. WG HAYDEN is a former Governor-General of Australia. He previously served 28 years in the Australian Parliament as Member for Oxley (Labor). Minister for Social Security from 1972 to 1974 and Australian Treasurer in 1975, he was leader of the Opposition from 1977 to 1983. He served as Minister for Foreign Affairs and Trade between 1983 and 1988 in the Hawke and Keating Governments. Named Humanist of the Year in 1996 by the Council of Australian Humanists Society, his publications include Hayden: An Autobiography (Angus and Roberston, 1996). COLIN HICKS is a senior adviser in the State Sector Development Branch of the State Services Commission, Wellington, New Zealand. He has a background in social work, industrial relations and criminal justice policy development. In recent years, he has focused on ethics in the public service. Colin has published a number of articles on the subject and is asked regularly to participate in seminars and workshops on ethics. He is currently involved in developing ways of managing and promoting ethical values and standards, and in ethics education and training. vii

CONTRIBUTORS

CHERYL KERNOT is the former leader of the Australian Democrats. Elected to Australian Federal Parliament in 1990, she is also a member of the Council for Aboriginal Reconciliation and a Board Member of the Australian Association for Young People in Care. She has been a member of various parliamentary committees, including the Senate Legislative and General Purpose Committee and the Joint Standing Committee on Electoral Matters. MAUREEN MANCUSO is an Associate Professor and Chair of the Department of Political Studies, University of Guelph, Ontario, Canada. Her main research interests are in the area of political ethics and political corruption, comparative political institutions, legislative behaviour, and American politics. Her books include The Ethical World of British MPs (McGill-Queen’s, 1995). She has published on the subject of conflict of interest and legislative ethics in Parliamentary Affairs, Corruption and Reform, Legislative Studies Quarterly and the Canadian Journal of Political Science. Maureen is currently leading a team of five political scientists conducting an empirical study of the ethical attitudes of the Canadian public and their politicians. NOEL PRESTON is the Director of the Centre for Ethics in Government, the Market and the Professions, Queensland University of Technology, Brisbane. Former president of the Australian Association of Professional and Applied Ethics, he has held consultancies with the Queensland Electoral and Administrative Review Commission and the Western Australia government commission on codes of conduct. He is a regular commentator on ethics and political practice in the print and electronic media. His extensive publications include Understanding Ethics (Federation Press, 1996) and Ethics for the Public Sector: Education and Training (editor, Federation Press, 1994). ALAN ROSENTHAL is Professor of Public Policy and Political Science at the Eagleton Institute of Politics, Rutgers University. He has supervised comprehensive studies of legislative organisation and procedures and has recently consulted with several state legislatures on legislative ethics. Recipient of the American Political Science Association’s Charles E.Merriam Award, he also served as a Fellow in Harvard’s Program on Ethics and the Professions and as a Research Fellow at the Institute of Politics at the John F.Kennedy School. His writing on state legislatures and state politics includes The Third House: Lobbyists and Lobbying in the States (CQ Press, 1993) and Drawing the Line: Legislative Ethics in the States (University of Nebraska Press, 1996). For several years, he has written a bi-monthly column on ethics for State Government News. CHARLES SAMPFORD was the Foundation Professor of Law and is the Foundation Director of the National Institute for Law, Ethics and Public Affairs, Griffith University, Brisbane. He has written widely on constitutional law and theory, jurisprudence, applied ethics, human rights and legal education, including The Disorder of Law (Blackwell, 1989) and Legal Ethics and Legal Practice (co-editor, Clarendon Press, 1995). He has undertaken consultancy work on codes of ethics and legal education in both Australia and internationally, including the Nolan Committee in Britain in 1995, and viii

CONTRIBUTORS

is currently the legal adviser for the Queensland Parliament’s Scrutiny of Legislation Committee. RODNEY SMITH is a Senior Lecturer in the School of Political Science, University of New South Wales. He has published articles on aspects of legislative ethics in academic journals including Governance and the Journal of Comparative and Commonwealth Politics and has contributed pieces on Australian politics to various journals and edited collections. His most recent publications include ‘Inside Moves and Outside Views: An Australian Case Study of Elite and Public Perceptions of Political Corruption’ (co-author, (1996) 9 Governance 23) and Politics in Australia (editor, Allen & Unwin, 3rd edn, 1997). STEVE TANNER began his working career as a newspaper journalist in 1980. In 1984, he was appointed to the then Tasmanian Premier, Robin Gray and worked over the next five years as researcher and press secretary. In 1989, he moved to academia, teaching political science at the University of Tasmania, where he is now an Associate Lecturer. His research interests focus on his experiences as a journalist and government adviser, and deal with political and media ethics, the relationship between legislators and media proprietors, and media responsibility generally. JOHN UHR works with the Public Policy Program at the Australian National University, having completed his graduate education at the University of Toronto. In 1995, he served as the Director of the Federalism Research Centre at the Australian National University. A part-time Member of the Commonwealth Merit Protection and Review Agency (MPRA) since 1994, he has been involved with the Australian Senate in a number of capacities, including Director of Research. He has published extensively on Australian government and public management, with a special focus on ethics in government, including Ethical Practice in Government: Improving Organisational Management (editor, Federalism Research Centre, 1996) and Deliberative Democracy in Australia (Cambridge University Press, 1998). HOWARD WILSON is the first government-appointed Ethics Counsellor to the Government of Canada. His responsibilities include administering a Conflict of Interest Code for Cabinet and other senior members of the executive branch, developing a mandatory Code of Conduct for Lobbyists and, subsequently, extensive investigatory powers regarding compliance to the Code. Prior to this position, he held executive positions with a number of Canadian governmental departments, including External Affairs and International Trade and Industry, Science and Technology.

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INTRODUCTION*

The connection between politics and ethics has been an issue discussed and debated in Western thought and practice since the days of the Athenian polis.1 Yet as the contributors to this volume make clear, the notion of ‘political ethics’ is one which is considered by many (both among the public and some politicians) a theoretical entity only. The growing number of exposed political scandals, the powerful role of the media in shaping public opinion and the public’s increasing demand for accountability by its public servants require a re-examination of that nebulous but crucial construct known as ethics in politics. In the pages that follow, most contributors generally assume that contemporary Western political practice needs a more explicit and self-conscious infusion of ethical critique. For them, politics is an inherently ethical enterprise.2 As Maureen Mancuso puts it: When a private citizen is elected as an MP, he [sic] assumes a second identity, one composed of a structure of special obligations that are often more demanding and restrictive than the general moral obligations of private life…There is a moral threshold crossed by those who undertake to represent in a public role the will and interests of others. Legislators may be held to standards that, if enforced against ordinary citizens, would violate their privacy. For example, legislators are often required to disclose more information about their financial affairs than is demanded of their fellow citizens. Publicity about a wide range of activities that would otherwise be private is justified on the grounds that legislators enjoy considerable discretion in exercising their political power. In order to maintain legitimacy, the wielders of this power must be held to come form of ethical standard. (Mancuso, 1995, p 10)

Nonetheless, as many of the following chapters demonstrate, the expectation of ethical rigour in political life and, certainly, the attempts to formalise and regulate ethics in political practice via codes, committees etc are not met without obstacles, apprehension and sheer red tape. The warning of the editor of the Wall Street Journal remains salutary and is echoed throughout this volume, most notably by WG Hayden. We are going to have to kill ethics before ethics kills us…We seem to have invented a new form of government. Probably it should be called government by character assassination. Policy debates are won or lost not by besting your opponents on the merits, but by suggesting that he has done something unethical. Once the ethical issue is raised, everything else stops until the last entrails of morality has been examined…It is as deluding and as self-destructive as any other obsession, and we are going down in history as the first civilisation to strangle itself in a frenzy of ethics…The point is that there is a kind of ethical absolutism that no human and human institution can sustain. It’s not necessary to 1

ETHICS AND POLITICAL PRACTICE

abandon ethics to recognize that the real world will always be full of cut corners and uneasycompromises. If you set out to destroy a person or cripple an institution by dredging up every other ethical question, you will always be able to find ammunition. Yet this kind of assault has become the common coin of our discourse…At some point the untrammelled pursuit of virtue becomes irresponsible…This is something we needs to think about. (Wall Street Journal, 1983, p 26)

Since that editorial was written, the ethics agenda for legislatures, parliaments and political practitioners generally has expanded. The development of codes and associated measures for elected officials has become almost universal both in the West and in many other political structures.3 Undoubtedly, the granddaddy of recent developments in legislative ethics can be identified as the Nolan Committee in Britain, established in 1994. Generated by socalled ‘sleaze’ accusations in the government and, in the case of MPs, the matter of ‘cash for questions’ or the payment of members for consultancies associated with their duties as parliamentarians, the Nolan Committee has been one of the most significant inquiries into ethics and political practice in the 1990s. Its recommendations, published in 1995, have been generally accepted by the Major and Blair governments and are now being implemented. (See Appendix 1 for Nolan Committee Recommendations.) They cover members of Parliament, ministers and civil servants, executives of quangos (quasi-governmental organisations) and National Health Service bodies. The most significant of these recommendations is that regarding the establishment of a Parliamentary Commissioner for Standards. This individual shall be: a person of independent standing who will take over responsibility for maintaining the Register of Members’ Interests; for advice and guidance to MPs on matters of conduct; for advising on the Code of Conduct; and for investigating allegations of misconduct. The Commissioner’s conclusions on such matters would be published.4

That office has been created and the Commissioner, Sir Gordon Downey, has commenced his difficult work. And as will be seen throughout this collection, the recommendations of the Nolan Committee have found their way in various wordings and slight variations in a number of codes throughout the English-speaking world. The publication of this book coincides with this blossoming interest across many nations in institutionalising ethics in the legislative sphere. As such, it seeks to take up the challenge of re-evaluating the place of ethics in the political arena. It aims to provide not only a theoretical discussion of the various notions underpinning this debate (‘democracy’, ‘representation’, ‘trust’, ‘integrity’, ‘honesty’ and ‘accountability’) but also provide a more ‘hands-on’, practical discussion of how to construct a code of ethics, who it should apply to, how to implement it and who should play the ‘ethical policeperson’. By presenting this spectrum of considerations of legislative ethics5 by a mixture of practitioners and academics, the ensuing discussion becomes more than a mere abstract conjecturing of the golden way forward for a more ethical and accountable political culture. It offers concrete (but by no means final) suggestions for dealing with a rather intangible but crucial part of the political

2

INTRODUCTION

world today. These suggestions are particularly accessible for practice and debate in North America, New Zealand and Australia.

THE MEDIA: A MAJOR STAKEHOLDER The role of the media in criticising and assessing ethical behaviour among public servants and especially among legislators is an issue raised again and again throughout this book (especially in Rosenthal, Chapter 2, and Mancuso, Chapter 5). Although it is the focus of a specially dedicated chapter here (Tanner, Chapter 7) (indeed, the topic warrants a book on its own), we feel the ethical significance of the media as the fourth estate in democratic societies warrants an additional commentary at this point in the volume. Journalists are key actors in legislative life and the way they practise their craft has a major impact on how ethically legislators discharge their duties. For good or ill, the media connects members of legislatures to their constituents and they react accordingly. In fact, looking back over the 20th century, it is evident that the media has increasingly become the arena for the conduct of politics rather than the legislature or public forums. So journalists have a strategic influence on the ethical performance of government, the legislature and all political players. Their role in understanding, interpreting and supporting measures designed to enhance the ethical exercise of political power presented in subsequent chapters is therefore critical. Yet it is demonstrably the case that the often incestuous relationship which develops between journalists and politicians is characterised by mutual cynicism when it comes to ethical matters. For all that, journalistic coverage of politics has become more critical and judgmental in recent years, with a greater focus on scandals. At the same time, there has been a decline of reporting on the legislature itself and substantial matters of policy and political ideas. While the media—electronic and print—is increasingly another vehicle of entertainment, politics itself is treated as entertainment in the media; indeed, the most effective legislators these days are those who become media stars.6 This is an environment which often militates against legislative ethics. While some managed ‘leaks’ may be said to be in the public interest, the ethics of ‘spins and leaks’ is a matter needing wider discussion and the development of guidelines. The press officers of political leaders and cabinet ministers have become powerful gatekeepers of political truth while journalists, in a media industry streamlined by economic rationalist cuts, have a limited capacity and fewer resources to practise independent investigative journalism on political stories for the handful of news outlets that are invariably owned by an increasingly smaller handful of multinational corporations. As a result, journalists are more and more reliant on the political management of political news. The whole area of political communication systems needs ethical scrutiny.7 A further dimension of the media’s interface with political practice is the vexed question of ‘post-employment’ or ‘pre-employment’ of journalists on the staff of politicians (see Steketee, 1996). Clearly, the are numerous temptations to be

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ETHICS AND POLITICAL PRACTICE

professionally unethical which confront journalists. For instance, there is the issue of covering an election campaign objectively and critically when the journalists have already been approached to join the press corps of a political party or candidate if they are victorious at the election. While the media in many countries have developed codes of professional ethics, there is still a need for clearer guidance regarding political reporting, particularly in the case of members of the profession who become press secretaries and political functionaries. There are several other measures which need to be adopted to encourage an appropriate critical distance between legislators and media representatives to help enhance ethical sensitivity. These include: the maintenance of non-commercial or public sector news providers; ethics education on political matters in the journalism profession and the wider community; more media analysis of the media; and independent press council watchdog bodies. If it is an implicit theme throughout subsequent pages that legislative ethics ultimately rests on a proper understanding of the role of legislators and the institutions they serve, then it is equally the case in the professions of the media. Journalists who operate in the political sphere surely have a fundamental obligation to act for the public good through fearless and truthful reporting, just as their editors and proprietors have a duty not to interfere with the faithful performance of that role. The special privileges and immunities sometimes claimed by members of the press can only be justified if journalists play an independent watchdog role. There is, as it were, a professional contract with the rest of society to carry out journalism’s ethical obligation. With such a focus, it is more likely that political reporting will attend not merely to the ethics of political process or of individual behaviour but al to the wider and more significant issue of an ethical analysis of policy positions as well. With this overall context in mind and a notion of the various stakeholders involved, we may now move on to a brief description of this book’s exploration of legislative ethics.

THEORY MEETS PRACTICE John Uhr sets the stage for the following chapters. He provides a thorough and informative discussion of the distinctions of political versus legislative ethics as well those differences which exist within legislative ethics, differences arising from the vast array of roles and responsibilities a politician faces as well as the diversity of political power with a political structure. He points out quite clearly that it is simply ridiculous to conceive of a politician as having one single role with clearly delimited responsibilities. Only by acceptance of this reality can a useful and effective approach to instilling and ensuring legislative ethics be developed. By focusing on the ethics of representation, Uhr highlights one of the central themes of the volume. This constitutes two of the major and possibly conflicting considerations faced by any politician at any level: the responsibility of the party in power to the legislature and responsibility of legislators to the electors. Together with these responsibilities are noted the issues of accountability and the role of the media in

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INTRODUCTION

highlighting (if not overemphasising) the importance of appearance in assessing the ethical conduct of legislators. Alan Rosenthal offers an insightful (if rather depressing) demonstration of this crucial issue of ‘appearance’. Noting that politicians consider appearance as apolitical rather than ethical construct, he reveals one of the schisms in the perception of political ethics. Focusing on the power of the media and its emphasis of appearance on a state level in the United States, Rosenthal demonstrates the importance of a pattern of action in judging appearances. He then assesses the assessor: the media. While the media is often an accepted watchdog for ethical behaviour among public servants, they too have their conflicts of interests which constrain their ability to act as an objective ‘judge’, constraints such as the competitive marketplace and the draw of sensationalism. Nevertheless, their power cannot be denied, as Rosenthal reveals in surveys from scandal-ridden and scandal-free states. Regardless of their local experience, the public maintains a fairly negative perception of the behaviour of politicians at the local, state or federal level. The consequence of being governed by appearances leads to judgments by legislators that are influenced by the need to have a clear and acceptable appearance rather than other possibly more important criteria. This reiterates Uhr’s view of the duality of roles of representation. The role of the lobbyist and the issue of finances are also discussed at length, for these are areas of political life which frequently fall under criticism. Rosenthal compares various forms of lobbying, stressing the presence of honesty and integrity in inside lobbying while noting that the outside method, focusing on the vote, shapes public opinion and legislators’ perception of this often without the same underlying ethos as found in inside lobbying. Rodney Smith provides another assessment of the function of appearance in political ethics. Here, Smith examines the perceptions of what is considered ethical from within the political arena as opposed to that by ‘outsiders’ (eg the media, the public, researchers in political ethics, ethics consultants). Utilising the example of documents leaked to an Australian Shadow Minister from the Attorney-General’s office, Smith takes us step-by-step through the reasoning of the politicians involved in dealing with this not uncommon ethical dilemma. In so doing, he reveals the priorities of roles that a politician considers in making ethical decisions. The role of party loyalty versus individual gain (an interesting contrast to the US case provided in Rosenthal and Mancuso), the impact upon the public service system and the quid pro quo relationship that develops from such a situation are only some of the elements revealed. Smith lucidly demonstrates the importance in understanding the distinct political culture and the insider’s perceptions of their roles and responsibilities before any code of conduct or even appreciation of the nature of one can be considered. He confirms the difficulties faced by researchers into political ethics, stressing the need for realistic hypotheticals in surveys and utilisation of such invaluable resources as biographies in attempting to construct a valid understanding of lived political ethics. As did Rosenthal, Smith reiterates the notion that political processes can override

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party concerns and that in considering a construct for legislative ethics, one must always remember the importance of party and institutional factors (such as factions). WG Hayden, a former politician and Australian Governor-General, asks the central but often overlooked question: Is political life incompatible with moral life? Although there is clearly no simple answer to this complex question, Hayden offers a series of scenarios which contrast idealised moral issues with the complexity of circumstantial constraints faced by many a politician. In short, while agreeing with Rosenthal that such developments as Freedom of Information Acts have led, rightfully, to a demand for a higher level of accountability by public servants in general, and politicians specifically, he emphasises that ethics should be considered as principles by which to judge the exercise of authority, not hard and fast rules of conduct. Indeed, he criticises rigid codes for their implication of a lack of trust. Further, he feels that such approaches only serve to attract small-minded politicians.8 Hayden calls for leaders to act as models, an idea that seems to receive as much scepticism as that of political ethics. Much as political situations are fluid, so should be the ethics of behaviour. The role of the politician reflect this fluidity, shifting between that of trustee to delegate as the situation demands. In sum, Hayden concludes that political ethics consists of judgments, not rules. Maureen Mancuso continues in this vein. In her examination of scandal-ridden America, she emphasises the need to address the political institutions as a whole in the attempt to create a more ethical political culture. While her detailed discussion is particular to the American case, Mancuso’s chapter makes explicit a point which lays implicit throughout much of the debate on political ethics. That is, one must take into account the peculiarities of the overarching political system and how it effects its political culture. Here, Mancuso points to the institutional characteristics of separation of powers, representation and the nature of rules in the American political system. Each of these entities contributes in their own way to encouraging or, more commonly, discouraging ethical behaviour among its participants. Mancuso suggests that institutional modifications to help diminish the negative effects adversarial separation of powers, interest-based representation and partisanencouraging overregulation would be of more benefit to the nurturing of an ethical American political culture than any further code or regulation. Howard Wilson, Ethics Counsellor to the Government of Canada, offers a detailed and informative examination of the daily work of an ethics counsellor. Wilson speaks from a position which was established in response to rising expectations and lowering levels of trust toward public servants, a development he views as stemming from the growth in complexity and pervasiveness of government as well as the increasing interest in public affairs by the public generally. In addition, he notes the influence of international developments in legislative ethics (demonstrated throughout this volume) and remarks as well on the benefits to the business community from ethical political behaviour. Wilson provides us with the fly on the wall view of his work, explaining his responsibilities as government-appointed ethics counsellor, the limits of his powers, the process of code development and implementation and the responses of the legislators, the media and the public. His administration of the Canadian Conflict of 6

INTRODUCTION

Interest code (an integrity rather than compliance-based code) requires both an advisory and educative role and one of investigation into allegations. Moreover, hisrecently drafted code of conduct for lobbyists has now been adopted and implemented. Wilson adheres to the belief that such codes protect both public and the public servants covered. Further, he agrees with Hayden’s call for leaders as role models, stating that the high profile of his position requires the Prime Minister (who appointed him) to act as an ethical leader, thus setting the pattern for other politicians. Despite the apparent success of his work, Wilson does not believe the instillation of ethical behaviour starts and ends with codes. Codes must be not only developed but they must also be implemented. Perhaps more importantly, their recipients must be aware of not only the codes’ regulations but also their underpinning notions, such as appropriate accountability, integrity and transparency. In addition, Wilson notes that privatisation of government sectors raises a new set of problems with regards to values and conflict of interests. In his analysis of the New Zealand experience of legislative ethics, Colin Hicks offers a marked contrast to the situation described in many of the other chapters here. Perhaps most striking here is New Zealand’s lack of current emphasis on codes of conduct, a lack Hicks attributes to the ‘small town’ nature of the country’s national political scene. Hicks describes the New Zealand situation as ‘self-regulatory’, even within political parties. Even so, ministers are now required to offer pecuniary disclosure and there does exist a Privileges Committee, whose remit covers ethics. In contrast to many other contributors, he presents a very positive view of media and while he notes that media coverage has shifted from issues to individuals, he does not feel this is to the detriment of their coverage nor the presentation of the politicians. Nonetheless, Hicks suggests that New Zealand’s recent shift to a multi-member proportional electoral system could represent a public disillusionment with politicians ignoring public views and hence not upholding their representative responsibility. In time, this may lead to a demand for more explicit guidelines for parliamentary action, include codes of conduct. Such codes must reflect the public’s desire for honesty, probity, fairness, accountability and independence. As noted above, Steve Tanner focuses on that very important aspect of legislative ethics: the media and its relationship both with the legislators and the public. After first setting out a brief history of developments and trends in media reporting of the legislative sphere, Tanner uses the 1992 Metherell Affair in New South Wales, Australia as a case study to examines the role and needs of each of the stakeholders. He unravels where one’s role might end, another begins and how they all impact on both the perception and actuality of legislative ethics. Meredith Burgmann’s description of the development of a code of conduct in the New South Wales Legislative Council is both educative and insightful. After briefly describing the road leading to the establishment of the Parliamentary Privilege and Ethics Committee, with its remit to draft a code of conduct, Burgmann takes us through the highways and byways of undertaking this very task. She details the decision over an aspirational or prescriptive code and examines the particular issues which caused more debate and controversy. These includedfreedom of conscience in upholding the law, gifts (especially services of staff), travel, financial 7

ETHICS AND POLITICAL PRACTICE

conflict of interest, post-parliamentary employment, misuse of resources and the inclusion of reference to the Anti-Discrimination Act 1977 (NSW). Criticising overcodification of the US sort, Burgmann goes on to debate the merits of an outside ethics commissioner (which she herself favours), examining the pros and cons for her particular political environment. She mentions the unavoidable presence of party political influence and questions the role of party discipline. In concluding, Burgmann infers a point noted by many other contributors: the need to look at the broader, institutional issues of role, responsibility and representation. Former Australian Senate President Michael Beahan acknowledges the power of discovery and disclosure in the juggernaut of ethical standards and codes of conduct. While nodding to the role of the media, Beahan also points to the influence of committees of inquiry, commissions against corruption and parliamentary committees in perpetuating this development. In addition, he feels the growth of the state provides more direct influence to the public over events, hence allowing public expectations of representations to be heard and, hopefully, followed, more closely. Providing a thumbnail sketch of the develop of a federal code of conduct and register of interests, Beahan demonstrates the challenges presented to such developments by party political interests, political will, public support and media attention. Former leader of the Australian Democrats, Cheryl Kernot, reiterates the belief that codes of conduct are necessary but not sufficient for ethical conduct. Emphasising the role of appearance in political behaviour, she feels that low public trust for politicians is one reason for codes. In addition, she stresses need for an enforcement mechanism. Kernot presents us with a vivid picture of the Australian Democrats’ continuous lobbying for an Australian federal code of conduct, taking us through the details of the proposed code and outlining the principles upon which it is based.9 Further, she highlights the procedural difficulties, the party wrangling and the private/public conflicts that are a part of every code development. To a code structured along the lines of Wilson’s integrity-based guidelines, the Democrats amendments have sought to emphasise the issues of appearance and the need for a whistleblower clause. In addition to clauses on service to public and avoidance of financial conflict of interest, they have additionally requested an explicit statement outlawing nepotism and have inserted Accountability and Openness under a Personal Conduct clause. Their suggestions for enforcement include case by case sanctions enforced by a joint house committee, following investigation by an ethics commissioner. In sum, Kernot concurs that the setting of standards must be reflective of the values and expectations of the community at large.10 In the final chapter, Noel Preston takes up questions which have not been dealt with in great depth in earlier chapters but which are germane to the prospects of legislative ethics. He argues against a minimalist approach to legislative ethics and for a broader perspective, not narrowly focused on codes and regulations for individual legislators but impacting on a wider public discourse which promotes better government and good public policy. Preston’s summary discussion, which draws on his own research with Queensland legislators, notes the pitfalls of legislative ethics, including the politicisation of ethics. 8

INTRODUCTION

The chapter examines the prospects for a range of measures in a comprehensive legislative ethics regime. The conclusion is that, though these proposals are meritorious, they will only work well when there is a movement in the general political culture toward a more thoughtful and discriminating understanding of the ethical duties legislators ought to fulfill.

CONCLUSION As the above summaries demonstrate, notions of political ethics, its essence, its implementation and its future are far from static and singular conceptions. As with any endeavour, ethical practice rests on assumptions and interpretations about ‘the nature of things’. Legislative ethics is no different; it rests on implicit views about the desirable and actual nature of politics and society, matters which are at the heart of political philosophy and political science. This is not a political philosophy or political science text but its essays are contributions to what we term ‘legislative ethics’, a subset of that applied or professional ethics field usually called public sector ethics. It is hoped that these varied and provocative pieces, together with the sample codes of conduct and suggested reading list found in the Appendices, will act as a useful resource to those seeking to understand legislative ethics, developing and implementing codes of conduct as well those attempting to act ethically within the complex world of politics.

NOTES *

1 2

3

4 5

This volume arises out of an intensive one-day workshop on legislative ethics at Griffith University on 10 August 1996. This workshop followed and was held in conjunction with the 5th International Ethics in the Public Sector Conference, Brisbane, 5–9 August 1996. Papers presented at the conference by workshop participants were discussed by fellow workshop participants with an aim to further both the useful criticism that such venues offer as well as to provide an opportunity for cross-fertilisation of approaches, problems, answers and seemingly simple questions. The chapters by Beahan, Hayden and Tanner are exceptions, in that the authors did not have the opportunity to attend the conference or workshop. While ethics and politics have been considered in tandem in such political philosophies as that of Confucius and Mencius, this book deals only with the Western scenario. Contributors to this volume come from a variety of backgrounds and thus offer a useful mixture of approaches to political ethics that engage with one another quite fruitfully. In short, contributors are a melange of academics and practitioners, with the latter including current heads of ethics committees/offices, current and former politicians, independent ethics consultants and political commentators. Appendix 1 provides a sampling of codes of conduct at both the state/provincial and national levels from the United States, Canada, the United Kingdom, Australia and Hong Kong. Committee on Standards in Public Life, 1995, Recommendation 17. The term ‘legislative ethics’ is taken to approximate ‘ethics in political practice’. It refers to the conduct of legislators in all their roles, within and outside legislatures, as well as to

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6

7

8

9 10

the ethical purposes of legislative and political institutions. The term ‘political’ is problematic here because not all politicians are legislators, elected officials or parliamentarians. These matters are more fully discussed in the context of British research in B Franklin, ‘Keeping it “Bright, Light and Trite”: Changing Newspaper Reporting of Parliament’ (1996) 49 Parliamentary Affairs 298. A major study on these questions was conducted by the Queensland Electoral and Administrative Review Commission. See Electoral and Administrative Review Commission (1993). While Wilson, ch 6, supports this view, considering the aspirational code to be far more effective in ensuring ethical behaviour, Burgmann, ch 9, feels such codes have no more force than the perennial call to ‘be good and eat your greens’. In the final chapter, Preston returns to this question of the Hayden critique in particular. Kernot wrote this chapter prior to her resignation from the Australian Democrats in October 1997. This approach contrasts strongly with Smith’s consideration in ch 3 of the need to focus on the ‘insider’s perception of political ethics’.

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1 DEMOCRACY AND THE ETHICS OF REPRESENTATION John Uhr

INTRODUCTION This chapter provides a number of signposts for those embarking on a journey into the land of political and legislative ethics. In many respects, it is an unexplored land and the chapters which follow report many new pathways into it. The task for this opening chapter is to provide a preliminary orientation which can be filled out by later chapters, each of which focuses on selected avenues of analysis which carve new access trails into this fascinating terrain. The study of ethics concerns the standards of right conduct. The study of political ethics concerns the standards of conduct which are appropriate to political life, not only for those in government but also for citizens acting in their civic capacity as electors and participants. The study of legislative or parliamentary ethics concerns the standards appropriate to those elected representatives who hold formal responsibility for law-making within a political system. Forms of legislative responsibility vary from system to system, making it unrealistic to expect too much in the way of a general framework of political ethics which suits all legislative or parliamentary systems. This discussion deals with the inevitable differences in legislative or parliamentary ethics by treating them as variations on a common theme: the democratic challenge of ensuring that elected officials not only represent the best interests of the communities which elect them but also exercise their legislative responsibilities as part of a wider civic debate over how best to promote the public interest. One central theme of this chapter is that the ethical responsibilities of elected officials vary not only across political regimes but also within political systems, depending on the institutional powers and political opportunities available to elected officials to contribute to the practice of government. Even within the one political system, not all elected officials are alike: 11

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different public offices which are open to elected officials bring with them different sets of political power as well as ethical responsibilities. For example, in Westminster-derived parliamentary systems, it is not unreasonable for the community to have different ethical expectations of prime ministers and parliamentary novices. One version of this view holds that the greater the political power, the greater should be the evidence of ethical restraints on the potential abuse of that power. Thus, for instance, the financial interests of ministers are more closely scrutinised than are those of backbenchers. The point is not that ethics is only an issue for elected officials in positions of real power; rather, it is that legislative or parliamentary systems have a wide range of public positions with different degrees of public power. As argued below, acknowledging this diversity of ethical situations is a good beginning for an orientation to legislative ethics because the work of legislators cannot be reduced to any one professional role or one comprehensive professional ethic (Thompson, 1987, pp 96–122).

DEMOCRATIC THEORY AND REPUBLICANISM Democracy refers most generally to self-governing political systems. Although the precise form of self-government can vary, all forms draw on the inspiration of ‘people power’ which reserves ultimate political power to the people. The ethical implications of democracy are most clearly visible in the language and practices of ‘republicanism’—the concept which historically has carried forward the moral aspirations of popular self-government and acted as something of the conceptual conscience of democracy (Haakonssen, 1993; Pettit, 1997). As the name implies, republicanism takes the res publica or public realm as the moral centre of a selfgoverning community. But the moral shape and substance of the public realm varies according to the model of the underlying ethical culture of a republic. While republicanism derives from classical antiquity, modern republicanism is distinctive in that it has been rebuilt on modern liberal lines which have narrowed the scope of the public realm and relaxed some of the sterner traditional ethical requirements of public officials. We can see the varying ethical implications for political institutions through a brief comparison of classical and modern republicanism.

Classical Republicanism The ideal of democracy is an ancient one, intrinsic to political life in many cultures. Contemporary political analysts conventionally begin their treatments of ‘democracy’ with a review of the theory and practice of democracy as found in the early and enduring classics of Western political theory, especially Plato, Aristotle and the Roman writers, such as Cicero. Aristotle is the typical representative, in that his treatment of democracy is sympathetic to the claims of democrats and to their distinctive argument that political justice means taking account of the interests of the many. Democratic regimes are those in which the people rule, and Aristotle investigates the huge variety of different institutional forms which popular government can take. The reputation 12

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which Aristotle has as a republican theorist might seem far-fetched now but hardheaded founders of Western modernity like Thomas Hobbes directly identified Aristotle as an influential republican source precisely because of the inspiration he provided to early modern republicanism, especially in its focus on civic virtue and the responsibilities of civic participation (see for example Hobbes, 1968, p 267). Aristotle’s Politics is something of a manual on citizenship, showing how the forms of good citizenship vary across political regimes and recommending as the best practicable form of popular government a mixed regime comprising substantial but not overwhelming popular participation (Nichols, 1992, pp 85–123). To judge from the Politics, part of Aristotle’s aim is to devise appropriate categories of analysis which are true to political life. But to judge from the Ethics, another part of Aristotle’s intention is to demonstrate a method of analysis which takes political ethics seriously as the basis of political inquiry. Aristotle is thus especially relevant because his Ethics is a companion text to the Politics and the two works together present a coherent classical account of the relationship between politics and ethics (Salkever, 1990). Not even Hobbes and his many forceful liberal followers could counter the lingering attractions of Aristotle, whose contemporary impact is evident in the resurgence of so-called ‘virtue ethics’, with its focus on the political partnership between the overlapping virtues of individuality and those of sociality (Chapman and Galston, 1992). At one level, Aristotle presents a calm and dispassionate analysis of the virtues which comprise the excellent individual but, on another level, a vigorous analysis of the civic virtues which make political life possible. Aristotle displays a realistic interest in the institutional sustainability of democratic regimes and political ethics emerges as one of the basic elements which conditions the prospects of effective popular government. The ethical analysis which Aristotle presents in his detailed empirical treatment of regime types is available in a bolder and more accessible form in Plato’s Republic, with its colourful treatment of political regimes, each with its ideal type of exemplary citizen. A primary example is the discussion of the democratic ethos in Book 8 of the Republic, with its flattering picture of the democratic soul as containing ‘the most patterns of regimes and characters’ and democratic regimes as models of freedom which are open to the widest parade of virtues and range of lifestyles (Plato, 1968, p 240). But the very tolerance of democracy brings about its ruin. There we find the remarkable picture of the democratic personality as one committed to the principles of equality and freedom: at one time drinking and listening to the flute, and another time downing water and reducing; now practicing gymnastic, and again idling and neglecting everything; and sometimes spending his time as though occupied with philosophy. Often he engages in politics and, jumping up, says and does whatever chances to come to him (Plato, 1968, pp 239–40).

The democratic regime falters and eventually falls because the multitude have no heart for sustained political participation. They want to be left alone to mind their own affairs but they can not help but notice the rise of a minority of wealthy citizens

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which threatens to become a ruling oligarchy. Populist leaders move in to take advantage of the people’s resentment against the power of the few; they establish their authority as protectors of the people, who in turn submit to their rule in order to secure their own safety. The relevance for this attention to the Republic is that it brings to life the classical view that political life is essentially about the politics of class, with each regime reflecting the character and way of life of its ruling group. The opportunities for the rule of different characteristics or class virtues—such as the equality of democrats, the money-making of oligarchs or the sense of honour of aristocrats—vary with political and institutional circumstance; understanding the constitution of politics is as important as understanding the composition of virtue, particularly if one wants to cultivate an enhanced sense of political morality. Different political regimes cultivate different sets of virtues. Thus, one effect is that the good citizen varies according to the regime, so that one can not simply say that to be a good citizen is the same as being a good person. Not every regime welcomes the fullest development of the moral qualities; even democratic regimes which pride themselves on their openness tend to marginalise a range of moral qualities which, however important they might be to the full development of the individual, are of little utility to the political regime as such. Regime development is promoted through the cultivation of certain types of individual and social virtues and modern or liberal democracy is sustained by its own set of distinctive civic virtues. It is these virtues which establish important limiting conditions on the hopes and ambitions we might have for enhancing the ethical conduct of public officials in liberal-democratic regimes.

Modern or Liberal Republicanism The form of modern republicanism which we associate with the exemplary commercial republic of the United States is not a rebirth of classical republicanism. It is a form of liberal politics, derived from the liberal political orientation pioneered by Hobbes and the subsequent originators of modern representative government. This version of republicanism can be accepted as a form of popular government but it differs from classical republicanism in several distinctive ways (Diamond, 1986). First, it is based on a specific and partial philosophy which is known by the term ‘liberalism’ and its relationship with democracy (Ryan, 1993). Liberal democracy is a form of qualified democracy in which the people are presumed to subscribe to a core culture of liberal values, with even a set of typical liberal virtues which can be seen as instrumental for the sustainability of the political regime as well as good in their own right. These latter are the procedural virtues of civility and fair play and it is correct to see legislators in liberal regimes as representative in the special sense that they display, writ-large as it were, the typical liberal virtues of procedural fairness (Shklar, 1989, pp 33–4; Gutmann, 1989, pp 75–81; and Galston, 1989, pp 92–5). Democracy is about the rule of the many but liberal democracy is about the rule of not simply any collection of many voices but instead the rule of a collection of many liberal voices. One influential formulation of this comes from JS Mill, who termed

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modern democracy the rule of ‘the American many’ in reference to the specific liberal virtues which the United States so prominently modelled from its constitutional foundations (Uhr, 1995, p 223). Secondly, liberal democracy is a form of representative government rather than direct self-government. The people are sovereign but they exercise their sovereignty by authorising a system of popular elections to determine who should hold the reins of government. The sovereign people could even authorise non-democratic forms of government, in which the rulers would still have to comply with the responsibility to represent the people. In elective regimes, elected officials might be expected to make up their own minds on law and policy but they are also expected to bear in mind that the people will have regular opportunities to vote on their performance as well as to discard officials who deviate away from their ethical responsibility to represent the interests of the community of electors. As we shall soon see, opinions differ about whether elected officials should strictly reflect the views of their electors or take their election as sufficient authorisation to rely on their own individual perception of community interests (Pitkin, 1972, pp 144–67). Thirdly, liberal democracy places great store in the reliable operation of political institutions as substitutes for the unreliable operation of civic virtue, in the people no less than in politicians. As with any open political regime, the institutions of liberal democracy can not be long sustained in the absence of a supportive civic culture. But what is special about liberal democracy is its relative emphasis on institutional mechanics compared to the investment in moral excellence professed by classical republicans. No political regime can completely dispense with all ethical virtues but liberal democracy confines its ethical investment to the thin virtues of social and institutional facilitation and restrains the state’s interest in the promotion of the thick virtues of moral excellence. Those interested in motivating political morality must accept that one important implication of the procedural virtues of liberalism: the underside of the liberal sense of fair play is the reliance on what Goodin terms ‘the minimally moralized model of threats of reciprocal retaliation’. This is the bitter pill of utilitarian self-interest hidden in the sugar-coated checks and balances of liberal constitutionalism (Goodin, 1992, p 87; cf pp 168–70; also cf Diamond, 1986).

Contemporary Republicanism The debate over the place of ethics in contemporary political life can be seen as a debate over contending understandings of republicanism. Over the last few decades, the concept of republicanism has resurfaced as one of the primary organising principles for political and moral debate. An example of the current use is found in Jürgen Habermas’ most recent work, in which he distinguishes between standard liberal accounts of political life which revolve around institutional arrangements for sorting disputes among individuals and an emerging set of republican accounts which restore a focus on the role of civic virtue in bonding a sustainable political community. Habermas notes both streams as contributors to the greater good which he associates with his preferred model of discourse ethics (Habermas, 1996, pp 99–104).

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The debate among liberals and communitarians involves a debate over models of political ethics (Taylor, 1989). Liberals and especially libertarians tend to favour a restrictive or minimal view of the ethical qualities desirable among public officials, based in part of their preference for a minimal state with very limited responsibility for law and policy. By contrast, communitarians tend to favour larger state action, even to the point of government promotion of forms of social solidarity through law and policy. These are competing views of the moral dimension of republican government and each perspective brings with it a competing agenda of ethical expectation about the due standards of political life. The suggestion here is that both views reflect elements of the original liberal orientation from which they derive and that it is useful to bring forward that original liberal formulation because it contains the core statement of the ethics of representation appropriate to modern democracy.

ETHICS OF REPRESENTATION The significance of the early liberal chapters in the development of modern Western government is their attention to the reason for representation (Pitkin, 1972, pp 14–37; Mansfield, 1968). The basic ethical framework for elected representatives derives from the requirements of representation. The starting point is the liberal doctrine of popular sovereignty, which gives liberalism its democratic credentials. In pre-liberal terms, the sovereign referred simply to the ruler and sovereignty referred to the principles of legitimacy on which that rule was grounded. Locke is justly regarded as liberalism’s first great exponent of popular sovereignty but few commentators have teased out the ethical dimensions of that political doctrine. Three such implications deserve attention as basic to the construction of the ethics of representation.

Informed Consent The first implication is that the basic legitimacy of a government is tested by the degree of popular consent on which it rests. The liberal model of the origin of government contains the political fiction of the social contract, which asks us to act as though we had come together out of a pre-political state of nature as a large group of individuals to establish a form of government which will best protect our individual interests. Depending on the circumstances of that original contract, we might agree to any one of a number of possible regimes. It would be quite possible for there to be an open democratic choice for monarchy. However, the point here is that the legitimacy of such a regime would rest on the popular consent from which it arose, with the further implication that it could lose its legitimacy through a popular choice to withdraw support from it. The threat of popular rebellion serves the purpose of reminding most governments that they live or die on the basis of popular consent. There are a number of preconditions of effective consent, the most important of which is that the people have a legitimate right to inform themselves about the conduct of government as a condition of their consent. There is a world of difference between blind trust and informed consent. 16

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This right of access to information about government gives rise to an ethic of accountability as a condition of the tenure of public office of those who govern. (For discussions of access to information and the related ethic of accountability, see Rosenthal, Chapter 2, and Hayden, Chapter 4.)

Limited Government The second implication is that the operational justice of a government is tested by the degree of adherence to specified limits on the reach of law and regulation. The liberal doctrine is that government is something of a second-best solution to the problem of conflicting individual wills, with the ideal solution being no government and a return to a peaceful and idyllic state of nature. Thus, the liberal model of government is one in which government is limited to the provision of public law and social order. For government to reach beyond these limits and to impose a common model of individual and social excellence would be illiberal. Locke’s account of limited government emphasises its constitutional character. Civil society is a construct designed to secure the private interests of the contracting parties and political actors have no legitimacy to use their power to go beyond the limited ends for which civil society was established. The rule of law is the model of good government while support for the institutional requirements of due process is the primary virtue expected of those in government. Limited government is not necessarily limited in the areas of society into which it might be called on to reach but it is certainly limited in the procedures through which it may determine its objects of law and policy. According to Locke, limited government means that governments are ‘bound to govern by established standing laws…and not by Extemporary Decrees’. Further, limited government is to rely on the aid of ‘indifferent and upright Judges’ and is to be ‘directed to no other end, but the Peace, Safety, and publick good of the people’ (Locke, 1963, p 399).

Delegation The third implication is that the trustworthiness of a government is tested by the degree of delegated decision-making permitted. Rulers who have earned their trust tend in turn to be trusted with greater delegated power by the sovereign people. Contemporary libertarian readings of liberal doctrine try to repaint the canvas in terms of minimal government, as though liberal governments have an ethical duty not to legislate except under the most exceptional circumstances. On the other hand, communitarian readings of liberal doctrine try to erase its individualist colours, as though liberal governments have an ethical duty to act in ways which legislate to reinforce the common culture of shared social concern (Taylor, 1989). There is plenty of scope for legislative action between these two poles. But recognising this scope for legislation does not specify the ethical character of the discretion open to legislators. Here one resorts to the old topic of delegate versus trustee. (For a politician’s view of this debate, see Hayden, Chapter 4.) Should elected 17

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representatives see their role in terms of delegates of their electors who are ethically bound to comply with electors’ instructions or as trustees of the nation as a whole who have an ethical responsibility to act according to their personal conscience of what is in the public interest? Or should they act as some combination of the two, with different ethical responsibilities in different political situations? Most conventional accounts of this issue overlook this third option; however, Edmund Burke, the great authority upon whom almost all scholars rely, provides compelling evidence for this third option (Pitkin, 1972, pp 168–89; Thompson, 1988, pp 132– 6; Thompson, 1987, pp 99–102; cf Gutmann and Thompson, 1985, pp 167–74). Burke’s views deserve close attention. That he is one of the original theorists of the concept and practice of party government is often overlooked by those who mine Burke for his views on the virtues of the trustee (Mansfield, 1964; cf Thompson, 1988, pp 146–9). Burke’s open defence of the legitimacy of party government was part of his larger defence of the rights of a representative parliament to resist the power of traditional monarchy. His preferred concept of the trustee does not refer to a legislative body as a collection of independent and autonomous actors each jealously protecting their rights to make up their own mind on each and every political issue. His acceptance of party is designed to encourage the open politics of civic associations as a replacement for the closed politics of court factions. This promotion of party government brings with it a new set of ethical obligations for elected representatives which replaces the old set associated with court government. The usual term for this new orientation is responsible government, as in ‘limited and responsible government’ (Shklar, 1989, p 23) or ‘responsible parliamentary government’ or ‘responsible party government’. (See Smith, Chapter 3, ‘The Role of Parties’, for a discussion of the impact of party government upon the ethics of legislators.) This concept of responsible government refers to two basic ethical relationships: the responsibility to the legislature of those who hold the power of government and the responsibility to the people of those politicians who hold legislative office. Modern representative government takes many institutional forms but beneath this variety is a common commitment to an ethical orientation associated with this concept. Political responsibility might appear to be a pale imitation of genuine ethical responsibility and it is true that the political ethic in question has greater specificity in terms of its process value as an ethic of accountability than in terms of its substantial value as an ethic of virtue or moral character. (See Hayden, Chapter 4, for a view on moral ethics in government.) Liberalism is not without its own specific ethical virtues but liberal political regimes tend to substitute a shared commitment to a limited range of procedural requirements in place of commitments to a broad range of substantive values. In terms of the ethics of character, the responsible government model is at the minimalist end of the range of possibilities. Under the protection of the umbrella of liberalism, the ethical requirements of good government are recognisable although they are minimal and thus capable of eluding public detection.

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VARIETIES OF DEMOCRATIC REGIMES Within the span of liberal forms of representative government, there are many institutional varieties and hence a range of ethics of representation. Representative government was thought by many British liberals to be intimately linked to British political institutions until the American Revolution and the establishment of the Constitution of the United States demonstrated that parliamentary institutions were not strictly necessary to representative government. Even within the British system, opinion differed on the merits of retaining the non-elective components of the established parliamentary order: the Crown and the House of Lords. Over time, the effective power of government shifted away from the non-elective components to be located in the House of Commons but even that component was steadily and substantially reformed in response to ongoing waves of criticism that marginal classes and groups were unfairly excluded from parliamentary representation. The classic Westminster approach to ethics is to pledge an institutional commitment to the concept of the legislative office as one of public trust. Yet there have been very few protections traditionally against the abuse of public trust, other than a register of members financial interests. Mancuso sees this combination of high principle and undemanding practice as a good illustration of the dated ‘ethical minimalism’ of the Westminster orientation which still rests substantially on concepts of honour reflecting the aspirations of an earlier era, untested by public scrutiny (Mancuso, 1995, pp 12– 13, 17–18). British colonies found their own means for adapting their Westminster-derived systems to meet their circumstances and agenda of representation. In contrast to the United States, Canada retained its parliamentary credentials as a federation of united parliamentary provinces. The national parliament mixed the names of British and American legislative houses and the principles of elective and nominated institutions. At the provincial level, the legislature was universally reduced to one house. Australia followed the path of federation but rejected British names in favour of American ones, going one step further by having the Senate elected popularly rather than by state legislatures, as in the United States at the time of Australia’s early political development. Australian states all had upper houses, at least until Queensland abolished its in the 1920s. New Zealand managed to develop along Westminster lines without a federal structure and it too eventually abolished its upper house after the Second World War. More recently, it has substantially deviated away from Westminster forms of stable party government through the adaptation of German-derived multi-member proportional (MMP) system, thus opening the door to coalition or minority party government (Boston et al, 1997). The original deviant from Westminster is the United States, which established a congressional system based on a formal separation of powers between legislative and executive office holders. Just as most parliamentary systems have developed into systems of prime ministerial government, so too the congressional system has developed into a form of presidential government. As Epstein notes, the original scheme as presented in The Federalist Papers involves an intricate design of institutional checks and balances which shares power and responsibility for decisions among

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dispersed public officials. While there is a danger that the people might never properly appreciate who is really responsible for which decisions, the constitutional framers were confident that the people would have regular electoral opportunities to hold government accountable. The Federalist argues that the secret of democratic success rests with what Madison was among the first to call the ‘responsibility’ of representative government to the people: the complex constitutionalism of the liberal republic was to be tested against the ethical imperative of ensuring that the people’s representatives would respond to and, as it were, ‘sponsor’ their genuine interests, even to the point of withstanding the people’s occasional demands to sacrifice those interests for passing fads (Epstein, 1984, pp 179–82; cf Diamond, 1986). We turn next to examine various forms of the ethics of representation. Each political regime contains quite a variety of types of representation, and even within the band of legislative or parliamentary representation there are many overlapping forms, each with its distinctive range of ethical responsibilities.

THE RANGE OF ETHICS OF REPRESENTATION Too often, analysts presume that legislative institutions are homogenous and that their ethical qualities can be evaluated in terms of a small set of types of public office. For example, British analysts frequently discuss ‘the role of the MP’ or ‘the information needs of the MP’ as though this role and area of need were uniform across the political institution. But the British House of Commons contains a wide range of parliamentary offices which deserve separate attention as distinct public offices and where quite different tasks are performed and quite different contributions made to the management of public affairs in Britain. While it is true that recent research has established a range of types of ethical orientation among British MPs (Mancuso, 1995), it is still the case that members’ ethics are treated as though all members faced equal burdens of ethical responsibility. This is not true for the British parliament, nor is it true of other democratic legislatures. Simply in terms of raw political power, not all elected members have equal opportunities to influence governments or citizens, just as they do not face equal temptations to make inappropriate use of public power. Admittedly, their general capacity to perform ethically is common to the extent that ethics is ultimately a matter of individual character. Nevertheless, their specific capacity for political ethics varies in large part with the political opportunities provided by the public office they occupy— and this changes with alterations to their public office. The very structures of legislatures affect the rights and responsibilities of legislators. Each legislature comprises a large collection of interdependent representatives, organised around an unwieldy decisionmaking process in which they play different but complementary parts (Gutmann and Thompson, 1985, pp 181–93). The Australian national parliament can be used as an example to illustrate the remarkable variety of types of parliamentary office and public ethical responsibilities found in parliamentary systems. Consider the range of types of parliamentary office as a ladder of political responsibility, beginning with the newly elected backbencher

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and culminating with the power of an established prime minister. There are important differences even at the threshold point of entry: the work of backbenchers varies between the House of Representatives and the Senate. This variety is not of the order of magnitude found in the US Congress, where there are important differences between the two houses in terms of their constitutional responsibilities: the Senate, for instance, having priority over the House of Representatives in respect of the ratification of treaties and the confirmation of senior government appointments. Yet even in the Australian case, where there are so few distinctions of task, there are important distinctions of responsibility. It is sufficient here to take one example. During the 1996 federal parliamentary debate on the Andrews’ bill (Andrews, 1996, pp 5905–11) to nullify the Northern Territory’s law permitting euthanasia, a senator representing that territory reported that although he was in conscience opposed to euthanasia, he had a higher duty as an elected representative to support the interests of his constituents, including their right to self-government and to make laws as they see fit without the threat of the federal parliament exercising its power as moral trump. This particular 1996 parliamentary debate is also relevant in that it was a rare example of a ‘conscience vote’ in which the political parties exercised no power over their parliamentary members to vote one way or another. It is all the more interesting, then, that some members aligned their conscience with what they understood to be their responsibilities of office. The key issue here is that many members acted on the general principle of voting according to their office and discovered that, in their own eyes at least, their office was one of trusteeship, allowing them to make a discretionary judgment about the best interests of the nation as a whole. For some, this meant supporting the general policy of euthanasia; for others, the reverse. This example has taken us no further than the threshold of the backbench level of parliamentary office, where there are many more differences of office. Some members hold office as chairs of parliamentary committees, where it is of great ethical relevance to note the substantial differences between the range of responsibilities accepted by those appointed as chairs of permanent or so-called standing committees and those who find themselves as chairs of temporary or socalled select committees. The nature of the ethical responsibility varies with the nature of the job. (Wilson, Chapter 6, and Hicks, Chapter 8, note the variety of ethical responsibility with regard to codes of conduct.) At one extreme are the chairs of established committees which rarely, if ever, divide along party lines or even deviate from unanimity. At another extreme are select committees into controversial government policy, whose chairs accept that their responsibility is of a different order, with a lesser obligation to strive for committee consensus and a greater obligation to facilitate the widest public ventilation of divergent community views. Examples of the former would include those venerable parliamentary committees like the Senate Committee on Delegated Legislation or the Senate Privileges Committee in Australia. Examples of the latter could include any select committees established by the various opposition parties to examine proposed government legislation (Evans, 1995, pp 354–6, 363–4). 21

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One could comb through the federal parliament and collect many additional examples of the range of parliamentary offices. A test case might be the position of party whips, which might initially seem to be private rather than public offices. But political parties are among the essential responsibility centres of Westminster-derived parliaments (cf Mancuso, 1995, pp23–6). For example, the Australian federal authority established to determine the remuneration of politicians recognises the party whips as exercising a necessary public role for which the occupants deserve additional public remuneration, similar to chairs of parliamentary committees—or indeed the leader of the official opposition, which is the highest paid non-government parliamentary office (Browning, 1989, pp 91–4; cf Mancuso, 1995, pp 21–2). The larger point here is that the institution which we call ‘the parliament’ is really a collection of smaller institutions and offices, each of which merits recognition as a separate ‘responsibility centre’ with a set of distinctive ethics of role. Thus, one can not stress too much ‘the significance of process’ for the theory and practice of legislative ethics: the legislative process calls on elected members to intervene in a wide range of ways and each form of intervention deserves separate ethical analysis to dissect the substance of the amalgam of rights and responsibilities (Thompson, 1988, pp 136–8).

BEYOND THE ETHICS OF ROLE Recognition of the ethics of role is not the end of the matter of legislative ethics but rather a useful beginning. To leave our examination at this point would be to do a disservice to the cause of legislative ethics by reducing the larger moral considerations of ethics to instrumental questions of role. However useful it might be to have individuals think of their ethical responsibilities in terms of their place in the political system, at some point the community can reasonably expect that public officials will interpret their responsibilities in the light of wider considerations and not see their task solely in terms of their contribution to system maintenance. Three limitations of the ‘ethics of role’ approach can be mentioned by way of conclusion. First, there is the external criticism about the weakness of the general professionalism of ethics. (Kaptein (1998) offers an insightful if critical examination of professional ethics.) Coady’s critique of the ethics of role demonstrates the narrow institutionalism which can easily accompany even the most worthy of professional ethics. This institutionalism has not only the useful effect of forcing individuals to think in terms of interests larger than those of their immediate self-interest but also the corresponding weakness of facilitating moral conformism (Coady, 1993). A powerful criticism which supports this general point in relation to legislative ethics derives from recent feminist contributions which have shaken the whole tree of political representation from the highest leaves of ‘the honourable member’ right down through the trunk into the roots of party organisation (Phillips, 1995; Okin, 1989). This critique forces us to reconsider the gender bias implicit in the institutions of political representation and to review the performance of legislative institutions in the light of their partiality to a limited set of male interests. (Beahan, Chapter 10, points out this bias with regards to early of conduct.)

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Secondly, one must consider the internal criticism about the iniplausibility of thinking in terms of a single role of parliamentarian or legislator. Recent scholars have drawn attention to the fact that legislative institutions operate through a complex articulation of roles which reflects the remarkable collegiality of the legislative process (Gutmann and Thompson, 1985, pp 169–74; Mancuso 1995, pp 26–8). No elected member can do very much alone, which is one reason why ‘independents’ are the exception to the rule of party representation. It makes little sense to think in terms of ‘the role of the representative’ or of ‘the professional ethic of MPs’ because each elected representative has to perform a range of roles, with a changing balance of responsibilities to electorate, party and conscience. (See Smith, Chapter 3, and his assessment of the impact of parties on notions of role.) Just as the legislative process goes through many phases, so too do elected members play significantly different roles in different parts of that process; this dense texture renders useless many of the standard single-minded ethical solutions. Finally, there is the very practical protest against focusing on conflicts of financial interests as either the primary or even the sole ethical problem for legislators. (Wilson, Chapter 6, ‘What Do Ethics Counsellors Do?’, notes this is not a substantial problem for legislators.) Money is not the root of the problem of legislative ethics, although it is one conspicuous manifestation. (Cf Rosenthal, Chapter 2, ‘Its Application’, for a different consideration of the role of money in legislative ethics.) The vices of representation can encompass self-interested use of money but the basic ethical defect is not financial self-interest but the external purchase of a member’s political judgment, a process which can arise from the sale of a member’s conscience to any number of causes, ranging from political parties to social movements. The preoccupation with conflict of interest schemes, such as registers of financial interests, threatens to distort our analysis of the ethics of political representation by making us believe that the primary role of the elected member derives from untied interests—when the real challenge is what one might call the problem of untied responsibilities (Thompson, 1987, pp 114–6; Mancuso, 1995, pp 173–5).

CONCLUSION Democratic regimes lack tidy boundaries. Like the exemplary democrat in Plato’s Republic, democratic political life is multi-faceted, reaching out to cover any number of causes and concerns. The energetic variety of political endeavour is one of the few constants. Democratic legislative assemblies secure a refuge of representation for a remarkably broad front of political issues and interests, with members of the same parties frequently drawn to different clusters of concerns. The prospects of ethical politics is challenged by this broadband of business. For one, the range of interests is so broad that electors cannot easily follow the balancesheet of law and policy emerging from the welter of bargains and compromises in the legislative process. Further, the waves on the surface of democratic politics can distract the community from the force and effect of deeper currents where invisible and frequently secretive forces, like the

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oligarchs who corrupt Plato’s democratic regime, undercut the open politics of democratic life. In all the literature on political ethics, one value which attracts universal acclaim among friends of democracy is that of publicity. (For varying views on the power of the media in legislative ethics, see Rosenthal, Chapter 2; Smith, Chapter 3; Hayden, Chapter 4; and Tanner, Chapter 7.) The usual authority cited is the great philosopher Kant, for whom the value of publicity rates almost as highly as the stern and austere virtues of self-restraint for which he had the highest regard. Kant appreciated that the political effect of civic virtue depends above all on institutions of publicity. Thus Thompson refers to ‘the necessity of publicity’ and Goodin explores ‘the rule of publicity’ (Thompson, 1987, pp 116–22; Goodin, 1992, pp 124–38). The most general safeguard against unethical conduct by politicians is the power of publicity, which opens up the very important subject of the media as the conduit of communication between electors and elected. Publicity is not so much designed to enforce compliance with popular will as to secure the conditions of discretion, so the community can at the very least know when and why their elected officials depart from the popular script or indeed their own populist script. Political ethics defies the efforts of scriptwriters, which is one reason behind the limited success of codes of ethics and conduct. (Cf Smith, Chapter 3, and Hayden, Chapter 4, for another explanation for the weakness of codes.) But where scripts fall short, at least the anticipation of the bright lights of publicity can discipline elected representatives against many forms of unethical conduct. (See Rosenthal, Chapter 2, on the importance of appearance.) The following chapters can be seen as fresh efforts in bringing publicity to bear on the theory and practice of legislative ethics.

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2 ‘APPEARANCE’ AS AN ETHICAL STANDARD Its Consequences for US State Legislatures* Alan Rosenthal

INTRODUCTION No measurement standard in the American states exercises the force on legislators that ‘appearance’ does. According to this standard, legislators not only have to avoid impropriety; they also have to avoid the appearance of impropriety. Like Caesar’s wife, they must be above suspicion. Legislators themselves seldom think of appearance as an ethical construct. They are far more likely to regard it as a political construct, realising full well that the appearance of impropriety can have baneful political consequences for them. Contemporary legislators are used to being counseled by leaders and senior colleagues not to do anything they would not want to read about in the newspaper the next day or that they would not want to see on television that same evening. People in elective political office rarely fail to take into consideration the political ramifications of their behaviour, tailoring what they do to conform to press and public views of what looks right and what looks wrong.

THE APPEARANCE STANDARD There can be no question that the appearance standard is a prudential one for anyone in public life, where nowadays perception can be reality. What is more disputable is the assertion that appearance also is a moral standard. Yet this assertion is widely held by ethicists and has been adopted by legislatures in search of a chart that will help them to navigate turbulent ethical waters. In the view of ethicist Dennis Thompson, appearance matters ethically as well as politically. Thompson goes so far as to maintain that ‘appearing to do wrong while 25

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doing right is really doing wrong’ (Thompson, 1992, p 257). Officials who appear to do wrong, he continues, actually do several kinds of moral wrong. They erode confidence in the political system, give citizens reasons to act as if government cannot be trusted and undermine democratic accountability. All citizens have to go by is their perceptions of actions and events and the circumstances under which officials act. They cannot assess the motives of public officials, for the motives are many, mixed and hidden from view. The appearance standard, Thompson says, points us in the right direction—away from motives and to ‘conditions that establish corrupt connections’. For him, appearances are inferences from ‘objective circumstances’ to subjective motives and institutional tendencies (Thompson, 1992). Ethicist Michael Josephson also writes that in matters of public trust and confidence, appearances are crucial. In surveys of legislators, legislative staff and journalists, the Josephson Institute of Ethics asked whether they agreed with the following statement: Because public trust can be undermined by perceptions of wrongdoing as much as by actual wrongdoing, public officials ought to avoid conduct which creates an appearance of impropriety, even though it requires them to refrain from conduct that is not actually improper. (Josephson Institute of Ethics, 1988; and Josephson Institute of Ethics, 1992, p 2, n 4)1

The statement is worded in a way that prompts a positive response but the results are astounding nonetheless: 91% of legislators and staff and 99% of journalists agree or strongly agree. Either practitioners overwhelmingly accept the standard or they pay public lip service to it (Josephson Institute of Ethics, 1992). Whichever is the case, no one is willing to take it on. The standard has been incorporated into law and rules at both the federal and state levels. As early as 1978, the Ethics in Government Act, based in part on a federal executive order, required that officials avoid conduct which could create the appearance of a loss of impartiality. Since then, both the executive and legislative branches of the federal government have adopted ethical standards which explicitly or implicitly utilise appearance. It is also a standard in use at the state level, particularly as it pertains to possible conflicts of interest by executive and legislative officials. For example, the New Mexico Legislature employs an oath of ethical conduct that requires law-makers to declare: ‘I shall not use my office for personal gain and shall scrupulously avoid any act of impropriety or any act which gives the appearance of impropriety’ (New Mexico Legislative House Rules, rules 26–1, 26– 2, adopted 1 March 1991). The appearance standard cannot be challenged on political grounds but it is on shaky ethical ground. It is unfortunate that an official’s proper behaviour may appear improper and thereby erode citizen confidence and trust in the political system, but it does not necessarily follow that the official is acting unethically. If the official knows that an action will have a negative impact on citizen confidence, then that official will have to bear some responsibility for the outcome. Just how much responsibility will depend on the purpose and the substance of the action and on other outcomes. It may be a legislator’s moral obligation to do something, even if it looks wrong and has

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some negative political effects. Suppose, for instance, that a legislator believes in the position taken by a powerful, local corporation; yet the corporation also contributes generously to the legislator’s campaign. The legislator knows that the company’s well-being benefits the district and, even beyond that, that its case is judged to be a good one. Citizens, however, have a different impression of the legislator’s relationship to the company. Can we claim that, since a pro-corporate position appears to be a result of campaign contributions, the ethical thing to do is to act contrary to basic convictions and the well-being of the district? We would have to stretch the argument for democratic accountability absurdly to make such a claim. If current conditions, as they appear, are the kind that citizens know from past experience tend to lead to improper actions, then citizens will be justified, according to contemporary ethical reasoning, in concluding that the current action is also improper (Thompson, 1992, p 257). At times, of course, a pattern established by experience may be clear but more often there is considerable room for doubt. The question is: how persistent and clear a pattern does there have to be in order to justify an inferential leap to unethical behaviour in the present instance? Often people generalise from past experience to current action on the basis of flimsy circumstantial evidence. That is a very far reach for the purpose of ensuring democratic accountability. Considerable information is now available for citizens to use in deciding their positions on issues or their votes for candidates. Such information includes, in the latter case, party affiliation, roll-call votes, declared positions on issues, constituency service and much more. Such information is more direct and more substantial than are inferences that rest on how things look—or how they are made to look.

ITS APPLICATION The application of appearance as an ethical standard presents a practical problem. Who determines what appearance is? This determination is extremely important, since assessments of morality and immorality will hinge on it, in that an action that is not immoral in itself can, in the language of ethics, be immoral because it resembles an immoral action. In legal ethics, the judgment of appearance is presumed to be that of ‘a fair-minded’ person. In ethics generally, the judgment would generally be that of ‘a reasonable observer’ or ‘a reasonable person’ (Lewis, 1991, p 52). In the legislative setting, judgments regarding appearance might be made by a law-maker’s colleagues, a committee on ethics or perhaps an ethics commission.

The Media as Arbitrator Practically speaking, however, appearance is that which is communicated by the media (and possibly exploited by an opponent in an election campaign).2 The media’s words and pictures are all the public has to go by. A public official’s position, career and reputation are in part a function of how the media portrays his or her behaviour. Do

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we wish to entrust ethical judgment to the media as well? The appearance standard requires just that; in practice, if not in theory, appearance is what the media make it. Press coverage accounts for much of the difficulty in which legislatures find themselves today. Most legislators concede that the press has a legitimate watchdog function in a democracy. A former speaker of the Wisconsin Assembly asserts that the most salient deterrent to unethical behaviour on the part of legislators is fear of consequences and the press has the ability to produce consequences. In his view, ‘a watchful, picky, even vengeful—but consistent—muckraking newspaper is needed’ (Loftus, 1993, p 28). But the majority of legislators believe that the press has gone too far and now functions as an attack dog instead of watchdog. The Josephson Institute surveys of legislators and legislative staff found considerable agreement as to how the press had changed: 88% saw it as more aggressive; 84% as more intrusive; 89% as more negative; 87% as more cynical; 64% as more prosecutorial; 68% as more biased; and 61% as more unfair (Josephson Institute, 1992, pp 8–9). Not a very positive assessment. In another survey of veteran legislators, 84% agreed that news coverage of the legislature had become more confrontational (Kurtz, 1993, p 3).3 The press can be expected to be critical, even adversarial. It goes with the territory, with the definition of just what is news and what is not. The operating rule that ‘bad news makes for good news’ has long been a standard of American journalism (and that of many other countries as well) but, writes Thomas Patterson, the media have raised it to new heights in recent decades. Focusing on Washington, DC, Patterson notes that, although there is no persuasive evidence that official corruption has risen, scandals increasingly fill the headlines. (See Mancuso, Chapter 5, for an in-depth discussion of scandals in this context.) In the last decade, ethical lapses have accounted for a fourth of the coverage of Congress, compared with less than a tenth in the previous decade (Patterson, 1996, pp 17–18). To think of the press in the role of judging legislative ethics by virtue of its power to define appearance is not a happy thought. The press itself has several conflicts of interest that prevent it from doing the job with even a modicum of fairness.

The Media’s Bias First, the market place shapes the nature of press coverage of legislatures and legislative ethics. Everyone is trying to attract an audience. The newspaper press has to compete with talk radio, talk television, and infotainment. To compete successfully, the print press has to produce stories on malfeasance and misfeasance in an environment where each medium is driven to become progressively more outrageous. Anthony Lewis of the New York Times refers to this as the press’s version of Gresham’s Law—the tendency, in the competition for an audience, to let the scandalous drive out serious news (New York Times, 1993). This is particularly the case with regard to state news, as a recent survey of statewide officials and legislative leaders in all 50 states found that newspapers were considered the most important medium in this regard (Beyle and Lynch, 1993, p 32).

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Secondly, the incentives that motivate reporters push in the same direction as the economics of the industry. The objective of practically any journalist is to turn out an exciting story that will appeal to a large audience. The story that nails legislators and/ or the legislature to the wall will be rewarded by one’s editors with preferred placement and it will gain plaudits from the profession (Graber, 1993, p 172). While one can think of journalists winning Pulitzer Prizes for uncovering corruption, one cannot imagine that many awards are bestowed for portraying the good work of public officials. Head-hunting statehouse reporters who master contemporary journalism will be able to advance their careers, which usually means leaving the state capital and going to Washington, DC, where celebrity status is nearer at hand. With this new mode of aggressive journalism the rage, statehouse reporters have become intrusive, relentless, judgmental and destructive of individuals and institutions both. Thirdly, the ideologies of members of the capital press corps, which are a product of contemporary culture and belief systems, predispose them toward a cynical, distrustful view of politicians and political institutions. Such a predisposition is reinforced by the fact that journalists themselves are prime consumers of the media and tend to believe much of what they read, see and hear. Some reporters lack much of an understanding of the political process. Some let personal bias slip into their writing. Most reflect a contemporary culture in which the legitimacy not only of representative assemblies but of all sorts of institutions—the police, courts, schools, families—has declined.4 For many, the role of the press is that of exposing the shortcomings of American democracy, which they believe to be substantial. Most of them have a reformist bent. Vietnam and Watergate added to their moral fires, turning a natural scepticism into cynicism. In the view of many presentday statehouse reporters, public officials and political institutions cannot be trusted. Power corrupts and even legislators have enough power to be corrupted.5

Money as the Source of All Evil If there is one belief that unites the journalistic community on a day-to-day basis, it is that money is the source of much, if not all, evil in politics.6 That is why press investigations into cause and effect usually follow the money trail. The contemporary press shares the ideology of progressivism, going back to the beginning of the century when the muckraker press mobilised against monied power. Thus, although money is hardly the sole ingredient of politics, the press reacts viscerally and emotionally to dollar signs. According to David Broder, a respected member of the journalistic profession: We think people who contribute ideas to politics are good citizens. We think that people who have the leisure time to go down and volunteer in campaigns are good citizens. But we think people who put money into politics are probably doing it for some evil, nefarious purpose. (Broder, 1996)

The theme that legislators are selling out for campaign contributions or other benefits is repeated constantly in state capitals across the United States. The periodic disclosure 29

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required by many states of lobbying expenses for the entertainment of legislators offers regular opportunity for the press to infer that legislators do what they do in return for the food and drink they are given. For example, during the course of deliberations on major telecommunications legislation in Florida, industry groups invited members of the committee with jurisdiction over the subject to dinner. Lobster was the fare (Collins Center for Public Policy, 1995, pp 62, 65, 70–1). By this time, an agreement had been reached and passage of a compromise package was imminent. The dinner was by way of celebrating a job accomplished and not for the purpose of gaining support. Nevertheless, the press reported on the ‘lobster dinner’ as if legislators were bartering their votes for shellfish. After livening up their stories with such innuendo, journalists admitted that all the industry bought was the dinner and not the legislators. But they believe it is proper to use the incident to express disapproval of legislators and lobbyists getting too close, as part of the press’ mission to put an end to such practices. For the journalists, the lobster dinner is symbolic; it suggests that the legislature cannot be trusted, which to them is generally true even if it is not true in the particular case. Campaign contributions are probably the favourite target of the media. Without fail, stories link contributions to a legislator’s vote, although no causal relationship is demonstrated. Typical of press coverage of campaign contributions is the series that ran in the Indianapolis Star (1996). It charged that a coalition of special interests got its legislative agenda passed in return for the millions of dollars it poured into campaigns. The articles revealed that candidates got the most money from political parties, insurance and real estate, business, labour and teachers unions, the health care industry, lawyers’ associations, single-issue groups and agriculture. This is hardly a surprise. Moreover, it constitutes nothing in the way of evidence that legislators’ votes are being determined by campaign contributions. The fact is that business interests and the Republican Party majority in the Indiana Legislature see eye to eye. The business agenda is the Republican agenda because Republicans believe that it serves the needs of the state and its communities. No allowance is made by the media that money may follow the vote rather than the vote following the money. Nor is there room for explanation in terms of benefits to constituency and to state, nor for any of the many factors that come into play in the legislative process. That would only complicate and confuse the media’s constructed scenario. The point has to be that legislators do what they do because they are being bribed, albeit legally, to do it. Seldom does the press portray anything other than the appearance of hanky-panky when it comes to campaign contributions.

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THE CONSEQUENCES OF BEING GOVERNED BY APPEARANCE Consequences to the legislature in being governed by appearance are varied. Some of them are unintended; others are unanticipated. A few are positive but a larger number are problematic or undesirable. These consequences stem not from any single factor but from a combination of factors. Appearance is certainly one of them.

Public Perceptions With or without the help of events, the media have been communicating a negative image of legislatures to the public. In this behaviour, editors and journalists would argue, the media is simply giving the public what it wants. A Washington state television reporter put it as follows: ‘I think the electorate likes to smell blood in the capital. They like to look for that scandal, and when they find the scandal, it validates the search’ (House of Representatives, 1992, p 30). Whatever the media’s negative message, the public has been buying it—wholesale. People have always been wary of their elected politicians. That is not new, but the climate is worsening. One indicator is that of ‘trust in government’, which has been measured by the University of Michigan and the Gallup Poll since 1958. Trust has declined substantially, from 73% who felt they could trust government in Washington to do what is right ‘always’ or ‘most of the time’ in 1964 to only 19% who felt the same way in 1995 (Craig, 1993, pp 10–17). People’s lack confidence is based in part on their belief that politicians are dishonest and unethical. In Utah, for example, which had not been touched by recent scandal, over two-thirds of the people polled said they believed legislators take bribes (Salt Lake Tribune poll, reported in State Capitols Report, 20 May 1993). The population of New Jersey is only slightly more sanguine about its legislators than are people in Utah. In a poll conducted several years after any scandal involving the legislature, New Jerseyans were asked several questions about the ethics of their legislators.7 They were asked to grade from A (best) to F (worst) the ethical behaviour of those serving in the legislature. Only 3% rated them A, 27% B, 44% C, and 20% D or F, with the rest not responding. That is about a C+ average, not too bad for a legislative body these days. Another question, however, tapped a more negative view. Respondents were asked not whether they thought New Jersey legislators took bribes but instead what percentage specifically they thought took bribes. 5% answered that none took bribes and 4% thought all took bribes. Between these extremes, assessments were scattered. Of those who ventured an estimate, an astounding 36.6% thought that half or more of the legislators took bribes. Scandals focus attention in a way that little other news of state politics does. (For more ‘scandalous’ discussions, see Mancuso, Chapter 5.) The public has scant knowledge of what is going on at the state level other than scandal. As suggested by the discussion in six focus groups held in California, Minnesota, and New Jersey,8 some people realise that they are getting only one part of a larger picture. ‘I guess it focuses a lot of negative attention,’ said a New Jerseyan. ‘You don’t hear much about 31

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the positive.’ ‘You’ve got the good apples and the bad apples,’ commented a Californian. ‘We hear a lot about the bad’ (Rosenthal, 1996a, p 44). Minnesotans, Californians, New Jerseyans and citizens of other states generalise from those few cases of which they are aware. If nothing scandalous or corrupt has happened in a state, people are still likely to have the same impression. They will have learned of scandals elsewhere, thanks to reporting by the national media. Videotapes of Arizona legislators being stung (with one senator stating that she wanted to die rich) and the CBS Sixty Minutes’ television segment on the corruption of the South Carolina legislature serve to reinforce further what people think about politicians.9 The news from Washington probably has an even greater impact. Citizens make little distinction between the behaviour of congressmen writing overdrafts on their accounts of the US House of Representatives bank and what goes on in the capitol of their own legislature. As members of one of the California focus groups saw things, congressmen in Washington had a swimming pool, free health care, limousines that drove them to and from the airport ‘and it just goes on and on and on’. The crossover from Congress to the California Legislature is easy to make: ‘You name it, they have it. I’m sure at the state level it’s exactly the same. I mean, I’m positive without knowing anything about it’.10 Thus people carry with them a picture of pervasive corruption on the basis of relatively few politicians and relatively few instances. They are firmly convinced that whatever they know is only the tip of the iceberg. Public perceptions of the ethics of legislators and legislatures are far out of line with the actual state of legislative ethics. Legislators are demoralised; they do not feel they merit the reputation they have with the public. (See Burgmann, Chapter 9, and Kernot, Chapter 10, for expressions of this demoralisation.) They also are intimidated by the hostile environment and are fearful of any misstep on their parts. Their judgments as to the legislative process and legislative institution nowadays are strongly influenced by the possible reaction of the press and the likely perception of the voters.

The Problems of Citizen Legislators One area of legislative ethics that cannot help but cause concern is that of conflicts of interest. Legislatures have enacted laws or rules to curb conflicts, such as banning members from using their official positions for personal gain, taking part in outside business activities that run counter to public-service responsibilities or favouring relatives, friends and cronies. The fundamental prohibition applies to the legislator who would personally benefit from some piece of legislation in a way or to a degree that other people would not. But if other persons of a similar standing or in the same category benefit, then a legislator is allowed legally to benefit as well. This means that a teacher-legislator can support legislation advocated by the education association that would raise teachers’ salaries, a banker-legislator can support legislation advocated by the banking industry that would deregulate aspects of banking and a lawyer-legislator with business clients

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can support legislation advocated by the state chamber of commerce that would reduce the business income tax. Such allowances are not satisfactory, however, given the ethical standard of appearance. A conflict of interest can involve appearance, not only conduct. According to ethicists, there need be nothing more than a ‘potential’ or an ‘appearance’ of impropriety for a conflict to exist. How great does the potential have to be? How strong must the appearance be before remedial action is warranted? The appearance of a conflict in a legislature is addressed in several ways. Disclosure The first way is disclosure, which is now a standard practice in the United States. Requirements vary but ordinarily legislators have to make public their assets, sources of income, transactions and liabilities. The ethical argument here is that only when citizens know where their representatives stand in their private dealings and with whom they are linked financially will citizens possess the information necessary to hold them accountable for their public actions. Some would argue that if legislators do not reveal their holdings, the public will—and has a right to—suspect the worst. The information that is ordinarily disclosed, however, seldom helps the public make a reasoned judgment about legislators. The press is likely to interpret the data to suggest personal or political gain, while an opponent for a legislator’s seat will exploit financial disclosure information as grist for a campaign-attack mill. There is no way of knowing how many incumbents leave legislative service or how many potential candidates refuse to run because of financial disclosure requirements.11 Disclosure can prove to be an embarrassment. Some individuals are embarrassed because they have too much, some because they have too little. If a legislator is in business outside, disclosed information may put him or her at a disadvantage vis à vis a competitor. One Florida senator, a man of considerable means, decided to leave the legislature rather than disclose because he would be fearful for the safety of his children if his wealth were widely known. For some people, the costs of disclosure are weightier than the benefits of legislative service. Recusal The second way in which legislatures address conflict situations is recusal, whereby a legislator abstains from voting or otherwise participating on an issue where a conflict appears. Recusal allows a legislator to take the ethical high road and also to play it safe, averting accusation of a conflict of interest by the media or by an opponent. The problem here is that the recused legislator’s constituents are denied representation on the particular issue. Take as an illustration Representative Barbara Casey of New Mexico, a schoolteacher by profession. In defending her votes on education issues and on school spending, she argues that ‘the voters in my district, knowing of my occupational background and my stands on issues, sent me to Santa Fe [the state capital] in part to fight for more money for education’ (Albuquerque Tribune, 1993). If that includes funds for higher teacher salaries, so be it. 33

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The problem is compounded because abstentions can have negative, not neutral, effects in some states. New Jersey’s legislature, for instance, requires a constitutional majority to pass a bill (41 votes in the 80-member assembly and 21 votes in the 40member senate). If several proponents recuse themselves because of the appearance of conflict, a bill that might otherwise pass could instead fail, not having achieved a constitutional majority. Even more important than voting on the floor is participation at the committee stage of deliberation. It is understandable, therefore, that the composition of standing committees has come under criticism. The grounds are that committees fall under the control of those legislators who are affiliated with the interests in whose areas they are supposed to govern. Typically, the criticism has been directed at judiciary committees, which in the past had been dominated by attorneys. Yet with fewer practicing lawyers in state legislatures nowadays, the judiciary committees in some places have only a few lawyers as members. Legislators who are elementary and secondary school teachers or administrators tend to gravitate to education committees, those in banking head for banking, those in insurance go to insurance and so on. The appearance standard is used to challenge assignments to standing committees. Legislative leaders respond as best they can to the requests of members. And it is natural for people with experience and knowledge in an area to want to put it to use in the legislature; indeed, this is often the basis of the public’s support. The only way to ensure that there is no appearance of conflict would be appoint to a standing committee only members who have no experience, no knowledge and no interest in the subject within the committee’s jurisdiction. Even the most staunch ethicist might not go that far. Prohibition The third way to deal with conflicts is prohibition. A number of private activities by legislators are barred or certainly frowned upon. Most states prohibit lobbyists from serving in the legislature. Many restrict lawyer-legislators not from private practice but from representing clients before state agencies. The only sure-fire solution to the conflict problem is to bar legislators from earning any income outside of their public employment, as the federal Congress does. The appearance of conflicts of interest would be eliminated almost entirely. The appearance standard with regard to conflicts is one of several factors promoting the transition from the ‘citizen’ legislature to the ‘professional’ legislature. Only a dozen or so state legislatures currently are full-time bodies, composed mainly of full-time legislators. Among them are legislatures in the large states (California, Illinois, Massachusetts, Michigan, New York and Pennsylvania). The rest are still part-time bodies, composed mainly of part-time legislators. A dozen of these, such as Montana, New Hampshire, North Dakota, South Dakota, Vermont and Wyoming, remain firmly in the citizen legislature category, while the remainder (about half of the 50 state legislatures) have been moving toward full-time status over the past few decades.

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This is not the occasion to debate the merits of the citizen versus the professional legislature. But the appearance-of-conflict-of-interest argument is prominent in the discussion. Despite the belief by many legislators and much of the public in most states that there is value in preserving the citizen legislature, ethics buttresses the argument of those who desire to go in the other direction. If outside earnings were prohibited, conflicts would no longer be an issue. The question for the states is whether it is worth jettisoning what is left of our citizen legislatures in order to avoid the problems attendant upon conflicts of interest.

Relationships of Legislators with Lobbyists The appearance of legislators consorting with lobbyists over drinks, at dinner or on pleasure trips has much to do with public perceptions today. If Americans are suspicious of legislators, they are doubly suspicious of lobbyists. When the two types come together, citizens believe that the public interest is being sold out. In recent years, state legislatures have made considerable progress restricting legislator-lobbyist interaction, thus hoping to dispel or soften the image in the minds of voters. Today’s laws prohibit or limit the amounts lobbyists can bestow on legislators in gifts and meals and require the public disclosure of who is taking how much and in what form.12 A complete ban, with only a few exceptions, is in effect in several states. Wisconsin has had a ‘no-cup-of-coffee’ rule since the 1950s; South Carolina, Minnesota and Massachusetts enacted such a rule after recent scandals. More common than prohibition are stringent limits and disclosure requirements. All of these restrictions have taken their toll on the pleasures of legislative life and, more important, on legislator-lobbyist relationships. In the past, establishing a relationship with legislators had been a major objective for lobbyists, especially for contract (or ‘independent’) lobbyists who represent multiple clients. Relationships are important to lobbyists (and to legislators) because they help to establish the credibility of the lobbyist and develop trust on the part of legislators. Lobbyists claim that all that they receive from socialising and entertaining is access. Reformers and the press claim that they receive legislative support. For the most part, relationships earn them a hearing and, other things being equal or nearly equal, the benefit of the doubt. Whether prohibition or only disclosure is in effect, many legislators are fearful of taking anything, lest a gift be misinterpreted by the media and by constituents. Without lobbyists picking up the tab, socialising has been on the decline. Trust will no longer be established through informal means; it will have to be developed on the job and over time. But today’s legislators, especially those in 18 states whose number of terms have been limited by law, have a shorter-term perspective and less incentive to forge long-term relationships. While they deal with one another, they have little time or inclination for developing relationships to the degree they had previously. This is particularly the case with regard to lobbyists, who, for the sake of appearance nowadays, have to be kept at a distance.

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Serge Garrison, now a lobbyist but formerly director of the Iowa Legislative Council, describes how lobbying has been changing in his state. We’re probably driving a lot of legislators crazy both at home and at the statehouse because of our phone banks and other grass roots campaigns. We use those techniques because many legislators don’t necessarily want to see us at the statehouse. It’s partly the ethics issue. Our new Iowa ethics law has changed the whole lobbying procedure…We have about 40 new members in the legislature this year, and we don’t know them very well. They are being taught not to trust us, which makes lobbying extremely difficult, (quoted in Kurtz, 1993, p 13)

Despite, or because of, lobbying going public, additional ethical issues arise. Addressing citizens and involving them in the resolution of issues would appear to be democratic, since participation is broadened. The question that raises the ethical dilemma is: by what means is participation being broadened? Inside lobbying, resting partly on relationships, is essentially an honest game. It has to be. Lobbyists cannot afford to jeopardise their credibility by communicating anything but truthful, useful information to legislators. If they mislead or deceive, they risk losing friends or making enemies. Lobbyists are in it for the long run, so no single issue is worth the sacrifice of a potential ally. Not only can a lobbyist suffer at the hands of an aggrieved legislator but a lobbyist’s reputation can also be tarnished with the entire membership of the legislature. That is why, even allowing for the possibility of advantaged access or obligations incurred in return for gifts, the inside game of lobbying is based on integrity. The outside game, in which constituencies and publics are mobilised, has a very different basis. The objective here is to exert pressure on legislators (or support for legislators, if they already agree with a group’s position). To do this, members of legislators’ constituencies or of the broader public are engaged in order to mobilise support, or the appearance of support, for the group’s position. The objective of the manager of the enterprise is to shape public opinion and the perception legislators have of it. The goal of an issue campaign is to win a vote, much as the goal of a candidate campaign is to win an election. As in American elections nowadays, when it comes to winning votes, few holds are barred.

The Regulation of Campaign Finance Before state legislatures had come of age, Jesse Unruh, the speaker of the California Assembly and inventor of modern-day state legislative campaign finance, referred to money as the ‘mother’s milk of politics’, a necessary source of nourishment for a healthy political body. That is still the view of politicians, although few are willing to risk saying anything positive in public about the part played by money in politics. Much of the money that supports the campaign system comes from special interests, interests that range widely and include labour unions, large corporations and small businesses, professional and occupational associations and numerous other bodies. A large part of this money is channeled through political action committees (PACs). In

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Massachusetts, for example, the Boston Globe analysed over 40,000 state contributions made during 1991–92. It found that three-fourths of the $8.8m total was donated by 30 interest groups, with lobbyists and PACs accounting for nearly 30% of donations over $50 (Boston Globe, 1993). It comes as little surprise to anyone with a knowledge of politics that rank-and-file citizens give very little to campaigns; hence, organised interests have to be the main source. There is no question that interest groups and lobbyists have strategic reasons for giving to candidates. Their objective is to promote group interests and campaign contributions are intended, in one way or another, to accomplish that objective. The election and re-election of friends, the winning over of legislators who are not committed, the softening up of opponents, access to make their case—all are among a group’s objectives. Over the past few decades, campaign finance reform has been high on the agenda of legislatures but nothing has worked to dispel the appearance of campaign contributions buying the votes of legislators. Moreover, reform efforts have led to consequences that were neither anticipated nor welcome. The most ambitious schemes have involved public financing, which is designed to limit expenditures, to help individuals who want to challenge incumbents and to reduce the reliance of legislators on special interests for funding. The problem here is that most Americans oppose public funds being used to finance political campaigns. (See Hayden, Chapter 4, for a different view of public financing.) Four states have enacted public financing for legislative elections but only Minnesota and Wisconsin have provided anywhere near realistic monetary support for the enterprise. As of 1990, the Minnesota system provided about $20,000 for house races and about $40,500 for senate races. About nine of 10 candidates participated in the system. Even so, Minnesota legislators still are required to raise money to receive a matching amount from the public finance pot. Further, the press continues to criticise the campaign-finance system and the legislators who take contributions from special interests. In Wisconsin, public financing is a failure. The general tendency is for candidates in competitive races to pass up public funding because of the unrealistically low spending limits that go with it. An incumbent who feels safe and does not need to spend a lot can afford to accept public money. A challenger in a relatively hopeless race cannot raise much without public financing; potential funders would see it as a ‘poor investment’. The parties take public monies to fund ‘nuisance’ challengers to harass incumbents. Overall, analysis in Wisconsin shows that the availability of public money has not encouraged many challengers to emerge (Jones and Boris, 1985, p 89; Mayer and Wood, 1995, p 69). In short, one might say that public financing only works in the competitive districts if the expenditure limits are high enough so that both sides can feel they are reaching voters with their messages. Another campaign-finance reform, designed to loosen the apparent connection between interest-group money and legislator behaviour, is that of limiting contributions. The number of states which cap contributions from individuals, corporations and PACs has been growing and the size of the limits has been coming down (Gais and Malbin, 1996, pp 58–60). In effect in 34 states, contribution limits are the most popular means employed to curb the flow of money to candidates. 37

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Led by Common Cause,13 reformers insist on bringing contribution limits down to the lowest levels possible. Already the limits are quite low in a number of states: $100 in Montana, $250 in South Dakota, $250 for a house race and $500 for a senate race in Connecticut and $500 in Florida. In other states, like New Jersey, limits are moderate but a coalition of groups is trying to cap donations at $250. As of 1996, however, stringent limits were being challenged by the courts. In Carver v Nixon, which struck down $100 limits for the house in Missouri, the 8th US Circuit Court of Appeals said the state had failed to show that the previously higher contributions were corrupting enough to justify restricting the constitutional rights of donors.14 While individual contributions are felt to be legitimate as long as they are not too high, PAC contributions are alleged to be corrupting no matter what their level. Many of the critics of the campaign-finance system want to abolish PACs outright or place severe limits on what they can donate to candidates. Although contribution limits have relatively little effect on how the press treats campaign finance or how the public perceives the system, they have other consequences. First, the lower the limits, the larger the number of contributions candidates need to run their campaigns and the more time they have to spend fund raising. This diverts them from their law-making duties to an even greater extent than otherwise. Secondly, the lower the limits, the harder it is to raise the amounts needed. This further advantages the candidate who is willing to tap into personal wealth for a campaign. Thirdly, lower limits benefit incumbents, since they act to depress total expenditures. In order to gain name recognition and overcome the advantages of incumbency, challengers normally have to spend larger amounts than incumbents. Limits thus restrict them in their efforts to unseat legislators who already have built a following. Fourthly, lower limits drive money in alternative directions. People who want to give will give to the political parties, which will spend this ‘soft money’ to get their candidates elected. The parties have a great incentive to spend where they have a chance of winning and especially if the candidate does not have sufficient funds to spend. Much more serious, as far as democratic accountability is concerned, are independent or issue campaigns run by groups on behalf of a candidate but without the candidate’s involvement and without the candidate having responsibility for funding sources or limits. Independent expenditures and issue campaigns are protected by the free-speech interpretation of the First Amendment by the US Supreme Court. The appearance of what is happening has hardly improved. The money is still being spent. As a staff member of Washington’s Public Disclosure Commission said: ‘Money is like water. It will find its way no matter’ (quoted in Gurwitt, 1992, p 51). Whether money finds its way to candidates directly or takes an indirect route is the question. The particular ways in which the campaign-finance system works, however, may be less important than the fact that it has been so thoroughly discredited.

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MATTERS OF RESPONSIBILITY American state legislatures are less independent and resilient as political institutions than they used to be (Rosenthal, 1996b, p 169). If legislatures do not thoroughly and continuously consider their appearance as communicated by television and radio and in print, they may encourage even greater cynicism and additional scorn by the public. These days, appearance has sturdy political legs. It hardly needs an additional loading of moral legitimacy. Nor does it merit the ethical status it has been given. In light both of how the standard is applied and how it affects state legislatures, ethicists ought to re-examine the case they have been making. It is not enough that their reasoning have elegance; the argument for appearance also needs to be grounded in practice. Ethicists who declare themselves to be concerned with practical ethics have responsibilities different from those of their less-applied colleagues. They have an obligation to take into account applications and consequences, particularly where there is evidence of harm being done. Any consideration of application as a practical matter has to be daunting. It would be desirable for ethicists to figure out how the ‘reasonable observer’ can be inserted into the process and thus counterbalance the negative influence of the media. Independent ethics commissions might conceivably serve such a role but they are more apt to adopt an adversarial stance. (Wilson, Chapter 6, presents a contrary view of independent ethics commissions.) If there is no way to deal fairly with the application of appearance, perhaps the influence that appearance has as an ethical standard should be qualified or diminished. An examination of consequences requires that damage done to individual legislators and, more important, to the legislature as an institution be given weight. In the media environment as it currently exists, the way appearance works helps erode citizen confidence and trust in political institutions and processes. It demoralises public officials; it discourages candidacies. Ethicists need not require scientific empirical evidence but they surely should factor whatever evidence does exist into their appearance equation. They might conclude that appearance as an ethical standard does more harm than good and thus needs major overhaul. Ethicists have recommended other standards in addition to appearance. Autonomy is one, responsibility another. (Cf Uhr, Chapter 1, ‘Ethics of Representation’.) Both are difficult to operationalise. It makes sense for ethicists to work further on the notion of responsibility as an ethical standard. The notion of responsibility, specifically responsibility to a community, carries less weight in moral philosophy than that of individual autonomy. But, as pointed out by Amy Gutmann and Dennis Thompson, legislators are responsible not only for their own activities but also for the well-being of the institutions in which they act (Gutmann and Thompson, 1985, pp 178–9). Legislators have obligations to their colleagues and a duty to the office they hold, to the legislature as an institution and to the legislative process. They are special custodians of representative democracy and are responsible for its proper functioning and maintenance. But currently American state legislators are intimidated, still able to defend themselves individually but having little energy left over for their institution. The abandonment of the legislature as an institution by those charged with its well-

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being is unfortunate indeed. This is a direction for those of us engaged in practical ethics to pursue and there is considerable work to be done.

NOTES * 1 2 3

4 5 6 7

8

9

10 11

12 13 14

This chapter uses material from Rosenthal (1996a). NB: the terms ‘ethical’, ‘moral’ and ‘good’ are used interchangeably, as are the terms ‘immoral’ and ‘bad’. This survey was a combination of several state and one national survey comprising 502 legislators, staff, lobbyists and journalists. For various views of the impact of the media on legislative ethics, see Tanner, ch 7, Hayden, ch 4, and Uhr, ch 1, ‘Beyond the Ethics of Role’. These results come from a survey of veteran legislators (15 years service or longer) comprised of 330 respondents to a questionnaire mailed nationwide to 747 veterans legislators. See Kernot, ch 10, ‘The Need for a Code of Ethical Conduct’, for some startling figures concerning public attitudes toward representative institutions. For an alternative view on the actual power of legislators, see Wilson, ch 6, ‘What Do Ethics Counsellors Do?’. Uhr, ch 1, ‘Beyond the Ethics of Role’, offers a contrasting view to this discussion on the corrupting influence of money. These questions were commissioned by the author and administered by the Center for Public Interest Polling of the Eagleton Institute of Politics, Rutgers University. The survey of 801 New Jerseyans was conducted 10–16 February 1994. Responses may be found in Rosenthal (1996a) p 44. These six focus groups, two in each state, were conducted for the author by the Center for Public Interest Polling. They were held in New Jersey on 30 March and 1 April 1993, in California on 19 April 1993 and in Minnesota on 3 May 1993. These videotapes of AzScam were aired nationally in 1990. Seven legislators pleaded guilty to charges. The segment on Sixty Minutes (a nationwide investigative news program with consistently high viewer ratings) dealt with ‘Operation Lost Trust, which broke in July 1990. Sixteen current or former South Carolinan legislators pleaded guilty or were convicted. Author’s observations of and conversations with state legislators throughout the United States. An example is Robert N Wilentz, who was elected to the New Jersey assembly in 1965, won re-election two years later and was fast earning a reputation as an outstanding legislator. Wilentz declined to run for the legislature in 1969 after a conflict-of-interest bill was enacted with his support. The new act would have limited his practice of law, which was his primary occupation while he served in the legislature. And despite his support of the disclosure requirement of the bill, he chose not to fall under it by remaining (or attempting to remain) a legislator. Wilentz was later appointed Chief Justice of the New Jersey Supreme Court, on which he served for 17 years before retiring in 1996. Wilson, ch 6, ‘What Do Ethics Counsellors Do?’, examines disclosure for lobbyists as well as a code of conduct. This code is included in the Appendices. A so-called citizens lobby which focuses on campaign-finance reform. Carver v Nixon 72 F 3d 633 (1995).

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3 STRANGE DISTINCTIONS Legislators, Political Parties and Legislative Ethics Research

Rodney Smith *

In mid-1995, the Australian Financial Revis ew ran a front page story about ‘the biggest leak in Australian Government history’ (Wallace, 1995, pp 1, 14). Thousands of computer files from the Department of the Attorney-General had been leaked to Senator Amanda Vanstone, the then Liberal Shadow Attorney-General. After reading some of the files to confirm their provenance, Vanstone presented the disks to the head of the Attorney-General’s Department. Why had she returned the files rather than keeping them and using them against the government? In the Financial Review’s words, Vanstone’s explanation was that she ‘drew a distinction between “genuine leaks”—the transmission of specific information for a particular political purpose—and the wholesale divulgence of sensitive information’. For Vanstone, using leaks of the latter kind would be wrong. ‘It’d be like Lady Macbeth trying to get rid of the black spot. You’d always have it with you in knowing that you had willingly accepted and used illegally obtained material in large quantities’ (quoted in Wallace, 1995, emphasis added). Further, the leaks may have damaged public servants: ‘the key thing to remember is that my party is at war, in a sense, with Labor, not with the Public Service. I’m not at war with the Attorney-General’s Department. They’re [sic] public servants there to serve the government of the day. They’ll serve us when we get into government’ (Wallace, 1995). The only regret Vanstone had over the incident was the AttorneyGeneral’s failure to thank her.

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UNDERSTANDING A POLITICIAN’S REASONING This story is worth recounting in some detail not only because it concerns honest action by a politician but more so because it reveals perfectly the distinctive ethical logic of politicians and the difficulties outsiders often have in understanding that logic. The argument that follows is not that this ethical logic is always explicitly expressed, or even always consciously understood, by legislators. Rather, the argument is that such a logic operates as a set of understandings, sometimes only implicitly understood, by which legislators deal with ethical dilemmas. Consider what Vanstone did not do. She did not return the information to the Department unexamined, despite the obvious sensitivity of material routinely handled by the Attorney-General’s Department. For the Senator, some leaked information, however potentially sensitive, could legitimately be viewed, retained and used. According to her own account, she drew, explicitly or implicitly, on three ethical distinctions when deciding whether or not to use the information. The first concerned the nature of the information. Specific information is fair game; indiscriminate information foul play. The second concerned the leaker’s purpose. Leaks betraying a deliberate political purpose may be used; apparently random leaks may not. The third concerned impact. Hurting party opponents with leaks is legitimate; damaging public servants is not. While the third of these distinctions would probably be easily appreciated by most individuals well-versed in two-party conflict, the first two would probably cause considerable confusion. If politicians can legitimately use small amounts of deliberately leaked information, why not less focused information leaked in bulk? It may take longer to sift through the latter but that hardly makes for an ethical distinction. The principle at stake here is not clear. The distinctions become clearer only when we focus on how public service leakers (and not just public service victims of leaks) fit into the two-party contest. Public servants who leak information selectively and purposefully to an Opposition—whether they are genuine ‘whistleblowers’ (on the definition and motives of ‘whistleblowers’, see Glazer and Glazer, 1988; and McMillan, 1994) or acting out of partisan or other motives—must hope that the Opposition will favourably receive the leaked material. They must also know that the leaks will in turn be used against the Government. Leaking of this sort thus inescapably means entering one side of an adversarial party contest. The leakers make an implicit bargain with the Opposition: ‘You are getting this material because I anticipate you will deal with it favourably. We have a common purpose here’. The information leaked has to carry this message itself by its specificity. Mischievous bulk leakers of information, such as the Attorney-General’s leaker, strike no such bargains with the Opposition. They implicitly but clearly reject the party political logic of leaks, a rejection indicated by the very randomness of their choice of material. Their motive is something else; here, the pleasure of participating in a game of uncovering and disseminating confidential information for its own sake.1 Accepting material from such a source means becoming party to a bargain based on the legitimacy of that game. When the Opposition becomes Government, the leaker has no reason to stop playing a game the ex-Opposition has endorsed and so would

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continue leaking to the new Opposition. By returning the disks and helping set in train an investigation to catch the Attorney-General’s leaker, Vanstone was protecting not just the Attorney-General in the short term but herself and her Opposition colleagues as well in the longer term. This analysis suggests three points. The first is the divide between the ethical logic of legislators and that of outsiders, including the vast bulk of citizens. The second is the relative importance of party politics in structuring the ethical sense of legislators. The third is the difficulties faced by those seeking to understand and assess legislative ethics.

A SINGLE LIBERAL-DEMOCRATIC ETHOS? Glyn Davis has argued that ‘(b)y and large, [liberal democrats] agree that public officials should behave ethically. There is a reasonable consensus about what this entails—and, even more remarkably, a good measure of compliance’. Although some may stress liberalism and some democracy, there is much common ground between and among liberal democratic citizens and law-makers (Davis, 1995, p 440). The example outlined above suggests that Davis is rather optimistic in his assessment of ethical consensus. The notion of a liberal democratic ethos is so broad as to leave room for a range of ethical approaches to political life. Maureen Mancuso’s important research on British legislators helps to uncover and systematise some of this diversity among legislators in a parliamentary system (Mancuso, 1995). (Uhr, Chapter 1, examines the implications of legislators’ varying roles for their ethical stances.) Mancuso distinguishes different approaches to legislative ethics based on issues surrounding constituency service and conflicts of interest. (For further details of her methodology, see Mancuso (1995) ch 2 and Appendix.) Constituency service refers to the balance legislators must strike between serving their particular constituents and serving another good, such as equity for all citizens or the national interest. MPs are…supposed to bias their judgments in favour of the interests of their constituents. How biased their judgments should be…is both a political and an ethical question. Are MPs permitted or expected to go to any lengths to advance the interests of their electorate? Or is there a point past which serving one’s constituency at the expense of the nation as a whole becomes ethically dubious? (Mancuso, 1995, p 37)

The well-known problem of conflict of interest refers to clashes between a legislators’ private and public roles, notably when private roles detrimentally affect legislators’ public duties or when legislators are able to use their public office to advance private concerns. Drawing neat lines between public and private affairs is often difficult, and legislators (and others) will disagree about where the appropriate line should be (Mancuso, 1995, pp 39–40). Constituency service and conflict of interest provide Mancuso with two dimensions for plotting four ‘ideal type’ ethical positions for legislators: puritans, servants, muddlers and entrepreneurs. Puritans are ‘unwilling to tolerate any deviance from 43

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the straight and narrow’ on either dimension. Servants give ‘primary consideration to the interests of their constituents in their ethical determinations’ but they take strict stances on issues of conflict of interest. Muddlers are ‘willing to tolerate dubious behaviour when it suit(s) their own interests, but fe(el) no obligation to do so for the sake of their constituents’, while entrepreneurs take a ‘minimalist’, ‘anything goes’ approach to ethical problems on either dimension (Mancuso, 1995, pp 50–1).

Figure 1

Scenarios for the Mancuso’s British conflict of interest and constituency service scales Conflict of Interest 1. 2. 3. 4. 5. 6.

7.

An MP is retained by a major company to arrange meetings and dinners in the House at which its executives can meet parliamentarians. An MP hires his wife or other family member to serve as his secretary. At Christmas, an MP accepts a crate of wine from an influential constituent. An MP is issued a first-class airline ticket as part of a parliamentary delegation. He exchanges the ticket for an economy fare and pockets the difference. An all-party group on the aged secures the services of a full-time research assistant at the expense of Aged Concern. A member on retainer to a PR company representing a foreign government submits several written questions for the Order Paper on British industrial developments in that country. An MP requests and receives a House pass for a lobbyist to act as a research assistant although his services are paid for by an outside source.

Constituency Service 1. 2.

A cabinet minister uses his influence to obtain a contract for a firm in his constituency. An MP uses his position to get a friend or relative admitted to Oxford or Cambridge or some other prestigious institution. (Mancuso, 1995, p 34)

To operationalise these dimensions, Mancuso asked British legislators to respond to a series of hypothetical scenarios. Those she eventually used as measures of the conflict of interest and constituency service dimensions are set out in Figure 1. Legislators were asked to rate each scenario on a scale of 1 to 7, where 1 and 7 represented the end-points ‘corrupt’ and ‘not corrupt’. Their responses to the scenarios on each axis were then summed and averaged to give every legislator a position on the two dimensions. In turn, Mancuso used the overall average of responses on each axis as 44

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the points at which to divide legislators into her four types. Thus, for example, her British legislators were considered puritans if they scored lower than average on both the conflict of interest and constituency service items (Mancuso, 1995, p 52). Mancuso found considerable diversity of views in Westminster, with none of her four ethical types claiming a majority of adherents. Entrepreneurs were the most numerous (35%), followed by puritans (28%), muddlers (21%) and servants (16%). From further questions, Mancuso found that the different types of legislators tended to define corruption in different ways, with entrepreneurs and muddlers stressing ideas of abuse of office, servants focusing on giving in to inducements and puritans divided between inducement and betrayal of promises or principles (Mancuso, 1995, pp50–2, 56, 91–2, 119–20, 146). Diversity, rather than Davis’s common liberal democratic ethos, marked British legislators’ approach to ethical issues. The same seems to be true of Australia. In 1990, researchers conducted an interview study of New South Wales (NSW) state legislators’ attitudes to corruption. The legislators were asked, among other things, to respond to 10 short scenarios describing actions by public figures of various kinds figures by saying whether they thought the actions were ‘very corrupt’, ‘corrupt’, ‘not very corrupt’ or ‘not at all corrupt’. As Figure 2 shows, nine of these scenarios fitted conceptually into Mancuso’s dimensions of conflict of interest and constituency service.2 The legislators’ responses to these the seven conflict of interest items and two constituency service items were assigned numerical values (‘very corrupt’=3 through to ‘not at all corrupt’=0). The legislators’ responses were then averaged to provide scores on the two dimensions. As for Mancuso’s study, the overall average scores for each dimension were used as cut-off points to divide the legislators into her four ethical types. The two studies do not allow perfect comparisons, since they used somewhat different scenarios and response categories. Nonetheless, the two studies are close enough to show whether similar levels of ethical diversity exist among British and Australian legislators. The result was a pattern of legislative ethical positions among NSW legislators equally diverse as the pattern at Westminster.3 In fact, the proportions of entrepreneurs, muddlers, servants and puritans are very similar in the two parliaments. A little over one-third in each parliament were entrepreneurs (35%), a little less than a third puritans (32% NSW; 28% Westminster), one-fifth muddlers (19% NSW; 21% Westminster) and around one-sixth servants (14% NSW; 16% Westminster). Interestingly, Mancuso’s 1986–3 Westminster study was conducted in a period when ethical controversy and debate was largely dormant (Mancuso, 1995, ch 1).4 By contrast, ethics were a sensitive issue for legislators in NSW at the time of the 1990 study. This sensitivity arose out of scandals surrounding the administration of the previous state Labor governments under Premiers Neville Wran and Barry Unsworth (1976–38) (see Steketee and Cockburn, 1986, ch 14).5 Interestingly, this difference in context did not mean that the NSW legislators were less likely than their Westminster colleagues to offer laissez-faire entrepreneurtype responses to ethical dilemmas or more likely to plump for electorally popular

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Figure 2 Scenarios for the NSW conflict of interest and constituency service scales

Conflict of Interest 1. 2. 3. 4. 5. 6. 7.

A Prime Ministerial candidate promises an Ambassadorship in exchange for campaign contributions. A public official uses public funds for personal travel. A Minister for Defence owns $50,000 of shares in a firm with which the Defence Department has a million dollar contract. The driveway of the Mayor’s home is paved by a Council crew. A member of the State Legislative Assembly, while chairing the Public Works Committee, authorises the purchase of land which the Member owns. A state legislator accepts a large campaign contribution in return for voting ‘the right way’ in the party room. A Member of the Commonwealth Parliament, who holds a large number of shares in the Broken Hills Proprietary Corporation, works to maintain tariff protection for BHP.

Constituency Service 1. 2.

A public official uses influence to have a relative admitted to law school. A Member of the Commonwealth Parliament uses seniority to obtain a Commonwealth contract for a firm in the Member’s constituency.

puritan-type responses. Neither the presence or absence of ethical controversy seemed to draw legislators together into an ethical consensus. Instead, both parliaments reveal cultures containing conflicting ethical impulses. Davis’s liberal democratic ethos clearly does not bind legislators to the same perspectives on how they should conduct their relations with each other and those they represent, or relations between their public roles and private interests. For some legislators, such an ethos implies a strict code of conduct in all matters; for others, a laissez-faire attitude to ethical dilemmas. For yet others, there exists a particular emphasis on combatting conflicts of interest whilst others pay special attention to fair treatment of different constituents. Moreover, legislators seem to habitually solve ethical questions in ways that are at odds with the balance of opinion in the community. The responses of a random sample of Sydney electors to the same items as those in the NSW legislator study reveals this diversity.6 Responses were again recoded into Mancuso’s conflict and service dimensions and the same cut-off points applied as for the NSW legislators.7 By the ethical standards of the parliamentarians, the preponderance of puritans among electors is obvious (55%). So is the less widespread tolerance of the entrepreneurs’ ‘anything goes’ approach (19%) and of muddlers (18%). Most electors want legislators to take a relatively strict approach to ethical problems. Even the servants’ preparedness to 46

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bend rules for constituents is less likely to be judged appropriate (8%) by its apparent direct beneficiaries (the constituents themselves) than by legislators. In NSW, electors and legislators often see ethical issues quite differently. The first point that Senator Vanstone’s reasoning reminds us of, then, is that representatives and represented in liberal democracies often see ethical questions in quite different ways. As Jackson and Smith have argued, legislators become socialised to the perspectives of political insiders; working within the political system means that they develop fine-grained understandings of right and wrong. The voters, outside the system, see things in much rawer terms, make fewer exceptions and accept fewer ameliorating circumstances (Jackson and Smith, 1996). For the outsiders, ethical issues are black and white; for the insiders, at least some issues involve shades of grey (Heidenheimer, 1970).

THE ROLE OF PARTIES Parties play an important but rather neglected role in developing legislators’ distinctive ethical perspectives.8 This neglect may partly have been due to the American lead in studies of legislative ethics, where parties are less cohesive than in political systems such as Australia’s (Peters and Welch, 1978, p 174. See also Rosenthal, Chapter 2, and Uhr, Chapter 1, for considerations of party politics and ethics). Whatever the reason, the literature on legislative ethics in liberal democratic systems tends to treat parties as though they only enter the stage when the demands of party cohesion come into conflict with the apparently externally formed outlooks of individual legislators. Parties are thus set up against individual legislators as if the two were fully formed and separate ethical identities. In Mancuso’s study, for example, the few references to parties (aside from descriptions of the party affiliations of different types of legislators) almost entirely refer to party discipline as a source of ethical dilemmas. A number of servants, entrepreneurs and muddlers (although apparently no puritans) identified conflicts between conscience and party as a key dilemma: Most entrepreneurs pointed to the dilemma inherent in party discipline: ‘Frequently I am asked to vote in favour of legislation with which I have reservations. Occasionally I don’t vote, but I can’t do this all the time.’ Another member agreed: ‘I usually vote according to my conscience but frequently I vote for the party on a policy which is not strictly consonant with my views.’ (Mancuso, 1995, p l65; cf pp 24, 113, 140)9

Dilemmas of this sort are clearly important. Nonetheless, focusing too heavily on them risks ignoring the way in which parties are explicit and implicit sources of ethical learning and guidance for legislators. Some evidence of these processes can be seen in the differences in patterns of ethical outlook between legislators from different parties. In the United Kingdom and Canada, members of Government and Opposition parties have different attitudinal patterns on ethical dilemmas (Atkinson and Mancuso, 1985, p 459; Mancuso, 1995, p 152). In NSW, the division lies between members of 47

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the major parties on the one hand and minor party and independent legislators on the other (Jackson and Smith, 1995, p 483). Such differences may partly reflect self-selection; individuals with different ethical outlooks are attracted to different parties. Such a process seems plausible where an individual’s ethics highlight policy or ideological differences between the parties (see for example the political biographies in Gumming, 1991; and Brett, 1992). It is less plausible in areas of ethics having to do with the processes of politics, such as conflicts of interest and constituency service. Indeed, an ethical commitment to a party’s ideology, programme or policies is likely to impose its own logic on legislators for questions of political process, regardless of the party to which they are committed. Would a Labor Shadow Attorney-General or an Australian Democrat legal affairs spokesperson have acted differently to Senator Vanstone? The responses of Labor and Democrat politicians with whom this case was discussed suggest not.10 Would a Labor Shadow Attorney-General or an Australian Democrat legal affairs spokesperson accept a specific leak, as Vanstone implied she would? Again, the responses of the Labor and Democrat politicians to the case suggest they would. Commitment to a party and the institutional position of that party (particularly whether it is in Government, in Opposition or in minority) combine to provide compass readings for legislators’ actions. Other institutional factors, such as the positions of organised factions within parties, may also play a major part in structuring the ethical responses of politicians to particular situations (a legislator may be willing to use the dubious actions of a member of a rival faction to damage that faction but defend or suppress knowledge of similar actions by a fellow faction member). Nonetheless, the limits of these other institutional factors on legislators’ behaviour will tend to be set by their party’s general position and outlook. Recent expression of the party as ethical compass can be found in the memoirs of former Australian cabinet minister Graham Richardson (Richardson, 1994).11 Although their title (Whatever It Takes) refers specifically to Richardson’s role in deposing former Prime Minister Hawke (Richardson, 1994, p 282), it also serves as a summary of Richardson’s approach to politics. His party (Labor) is far better for Australia than the alternative; the Party can only prosper if its members are loyal to it; members must be prepared to do ‘whatever it takes’ to ensure the Party’s success and thereby the country’s prosperity. Richardson was a factional warrior, one of the most powerful figures on the dominant right-wing faction of the NSW Branch of the Labor Party. Underlying many of his political actions was a desire to maintain the Right’s factional dominance over the Left. Even so, he viewed factional fights with an eye to the overall fortunes of the Labor Party. The reasoning that animated Richardson’s political career thus resembles that of one of Mancuso’s servants, with the crucial insertion of the party between the legislator and the constituency. Such an legislator might be termed a ‘party servant’. The party servant meets constituency demands in two ways: through individual action (à la Mancuso’s servant) and through active membership of a party team serving the constituency at large. The dilemma here lies not in potential conflicts between individual conscience and party discipline but in ensuring individual constituency service does not damage the ability of the party to maintain its wider role for good. As 48

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his memoirs show, Richardson got this balance wrong on some occasions. (See for example Richardson, 1994, pp 340–3).12 Richardson was not a muddler or puritan and still less an entrepreneur, since loyalty to the party cut across an ‘anything goes’ approach to ethical issues. He may have been an extreme case; perhaps only a few politicians would see membership of a party in the quasi-religious terms Richardson apparently did (Wilkinson, 1996, pp 8, 14, 359). Nonetheless, in disciplined party systems like Australia’s, versions of the party servant ethic are likely to be widespread.13 However, they will only be recognised as such if political parties are moved closer to centre stage in studies of the ethics of legislators.

DIFFICULTIES IN RESEARCHING LEGISLATORS’ ETHICS Moving parties to centre stage by no means clears up the problems of researching legislators’ ethical perspectives.14 In particular, it leaves methodological questions untouched. The case of Senator Vanstone and the public service leaker indicates some of the key problems of using one of the most common methodologies: interview (or questionnaire) studies involving legislators responding to a series of hypothetical scenarios. This methodology has a solid pedigree, going back at least as far as Peters and Welch’s study of US legislators (Peters and Welch, 1978). Its virtues include standardisation of responses and relatively easy replication. The difficulties are the flip-sides of these virtues; neither the scenarios nor the responses allow legislators room to indicate the nuances of their thinking about the issues raised by particular scenarios. Imagine if intrepid and prescient researchers had presented Senator Vanstone with the following scenario: A shadow minister retains and uses confidential departmental information leaked by a public servant. Is this behaviour (1) Extremely ethical; (2) Somewhat unethical; (3) Slightly unethical; or (4) Not at all unethical?

She would presumably want to respond with questions of her own: ‘Was the information specific or general?’, ‘What was the leaker’s motive?’, and ‘Whom would the leak harm?’. Our researchers could modify their scenario, adding detail to satisfy Vanstone: A shadow minister retains and uses specific confidential departmental information leaked by a public servant who wants to publicise an issue that is damaging to the government of the day but not to the Public Service. Is this behaviour: (1) Extremely ethical; (2) Somewhat unethical; (3) Mildly unethical; or (4) Not at all unethical?

Vanstone would now presumably answer ‘Not at all unethical’. The problems do not end there, however. When our researchers put the scenario to another legislator who answers ‘Extremely unethical’, it is now unclear whether it is one or more of the three added elements or the whole issue of using leaks that the respondent finds unpalatable.

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The respondent’s answers to other scenarios may help to clarify the response to this scenario but devising scenarios to cover all the possibilities would produce an impossibly unwieldy interview schedule. These are not just hypothetical concerns. Preston and Smith have recently conducted pilot interviews to develop an interview schedule for studies of Australian federal and Queensland legislators.15 The interviews included a series of standard hypothetical ethical scenarios, some of which appeared above (Figure 1) and most of which would be familiar to researchers from the studies cited throughout this chapter. Each respondent to the pilot interviews, all former legislators, wanted to complicate at least some of the ethical scenarios in various (sometimes inconsistent) ways. They were not doing so to be difficult but because they believed that the scenarios did not capture important subtleties of the situations legislators encounter in their working lives. The success of past studies shows that legislators will respond to scenarios of this sort but the pilot respondents’ comments indicate that legislators’ ethical outlooks are not as straightforward as the fixed-choice answers to a series of scenarios might suggest. This is not an argument for abandoning the use of scenarios for developing pictures of the ethical worlds of legislators. Rather, it is an argument for caution and for filling out the pictures of those worlds with careful analysis of the responses legislators make to the more complex realities of political life.

CONCLUSION Outsiders, including researchers, often find it hard to understand and sympathise with the ethics of those involved in parliamentary and the wider political life. These outsiders bring their own ethical standards to bear on political questions and consequently often find the legislative process frustrating or inadequate. Moreover, legislators often see the efforts by outside researchers to understand and interpret political ethics as naive and uninformed by an appreciation of the daily realities of political life. (Rosenthal, Chapter 2, addresses some of the problems by those seeking to modify legislative ethical behaviour.) Only by better understanding the way the ethical perspectives of legislators are formed can outsiders hope to make practical suggestions for change to their ethics and behaviour. Increasingly, good research is being conducted in this area. To further improve this understanding, researchers need to pay closer consideration to the place of political parties in legislators’ ethical development. The ongoing stock of political biographies and memoirs is a useful but under-utilised resource for research and understanding of the interaction between individual legislators and their parties. Researchers also need to move beyond a reliance on hypothetical scenarios in interview schedules when trying to evaluate legislators’ ethical views. Such scenarios are useful but they need to be supplemented by case studies, such as the one presented in this chapter, that illuminate the logic of legislative behaviour and ethics in action.

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NOTES *

1 2 3 4

5

6 7

8 9 10 11 12

13 14

15

This research was partly supported by a Royal Institute of Public Administration Australia/ University of Canberra Research Trust Fund Grant and an Australian Research Council Small Grant. The arguments presented here benefited from the comments of participants in the legislative ethics workshop, convened at Griffith University, Brisbane, 10 August 1996. This certainly appeared to be the motive of Peter Mackay, the public servant arrested for these particular leaks. See Wallace (1995) p 14. See Jackson et al (1994) p 54 for further details of the items used in this study. Mancuso’s study contained 100 MPs; Jackson et al surveyed 103. The long time-lags involved in publishing a book have clearly rendered Mancuso’s claim that ‘[s]ince the completion of the [British] interviews, no substantive ethical reforms or major scandals have taken place’ (Mancuso, 1995, p 30) more than a little dubious. Public concern about political corruption featured heavily in the Opposition Liberal and National parties’ campaigning during the 1988 election. Soon after winning the election, Liberal Premier Nick Greiner established an Independent Commission Against Corruption (ICAC) to investigate matters of political corruption. Among the first ICAC investigations given wide publicity was one that implicated key Coalition as well as Labor figures (see Chaples and Page, 1995). For further details of this survey, see Jackson and Smith, 1996, p 23. This survey was carried out in 1993 with 554 subjects. The legislators’ cut-off points are used here to compare precisely the ethical differences between legislators and electors. The averages for the elector sample could have been used to distribute electors into Mancuso’s four types. The problem with such an approach is that legislators and electors with exactly the same scores on the scenarios would have been assigned to different groups, because the averages (and hence cut-off points) for legislators and electors were different. To put it another way, some legislators whose attitudes make them puritans in their legislative culture would be entrepreneurs by the standards of the general public. To avoid this problem, the legislators’ cut-off points were used as a common standard for assigning both legislators and voters to the four types. More broadly, Burgmann, ch 9, and Kernot, ch 10, both address the important issue of the impact of party politics upon ethics committees. See Rosenthal, ch 2, ‘The Consequences of Being Governed by Appearance’, for a discussion of the option of recusal. At the 1996 legislative ethics workshop, on which this book is based. Richardson served in the cabinets of Prime Ministers Hawke and Keating. For an account of Richardson’s political life that explores some incidents and ethical issues throughout his career (over which he passes quickly or in silence in his memoirs), see Wilkinson (1996). Wilkinson’s account of Richardson is consistent with the ‘party servant’ role argued here. See Hugh Emy’s excellent but now dated research on Australian legislative types (Emy, 1974, ch 16). The research referred to here is not purely of a scholarly nature. It also includes that investigation undertaken by ethics counsellors and consultants who may be establishing legislative codes of conduct or developing ethics guidance materials. For some details and early results, see Preston (1996a).

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4 POLITICS, PUBLIC RESPONSIBILITY AND THE ETHICAL IMPERATIVE WG Hayden

INTRODUCTION* With so many Commissions of Inquiry and standing bodies charged with ferreting out evidence of officials’ misconduct and of making miscreants accountable before the courts, the issues of morality and of codes of ethics—the latter being derivate from the former—are very much in people’s minds (Harman, 1994, p 8). I doubt that the incidence of this sort of misconduct is any greater today than earlier. Rather, a better educated and more self-confident community has increasingly demanded and achieved more and more access to information about government; in particular, where it has acted to the disadvantage of the individual. These expectations have led to a higher level of accountability by its public servants, whether elected or as career officers. This trend to greater transparency of and increased accountability by the arms of government can be considered to vitalise our democratic processes. Yet in dealing with accountability in public life and its associated behaviour, the focus should not be on corruption or misconduct alone. What I wish to focus on are bigger and more essential questions: Is political life incompatible with the moral life? Are there important instances where the highest moral standards, which many obviously feel should be the sine qua non in public life, are unattainable because the pressure of circumstances prevents the best principle being chosen? To carry this line of questioning further, one should ask more specifically are politicians and their advisers unconscionable compromisers on great moral issues? Is it a case of the perennial presence of ‘dirty hands’ in politics, as it is described by some theoretical moral philosophers? The principle behind the notion of ‘dirty hands’ concerns the political leader who for the sake of public purpose violates moral principles. That is, the political agent gets ‘dirty hands’ by resolving moral dilemmas between the desirable best in the abstract and that which is less than the best but offers the best practical outcome. Or is there a case for second-best resolutions because the 52

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idealised response is impractical, counter-productive and would impose costs which far exceed any gains?

MORALITY AND ETHICS It has escaped no one’s attention that a great deal of hotly contested political debate proceeds on the basis of both sides, although totally opposed in their views, exclusively claiming the moral high ground. Sometimes one side is correct in its claims and sometimes, too, for the wrongly stated reasons. Noel Preston says: ‘ethics is about what is right, fair, just or good; about what we ought to do…ethical claims are debatable and contestable’ (Preston, 1996b, p 16 (original emphasis)). Contrary to the moral absolutists, Preston acknowledges in respect of discussions on ethics that ‘we encounter conflicts of value, interest or sentiment, and choices between principles, decisions and actions’ (Preston, 1996b, p 16).

Do Moral Imperatives Exist? There can be a long and perhaps acrimonious argument about the notions of right, fair, just and good. They are very much value-laden terms. The distinguished moral philosopher Bernard Gert leaves the definition of what morality is open to further questioning when he says: Morality is a public system applying to all rational persons governing behaviour which affects others and which has the minimisation of evil as its end, and which includes what are commonly known as the moral rules at its core. (Gert, 1988, p 6)

Nor does he help when he acknowledges ‘there is not complete agreement concerning what counts as a moral rule, (nonetheless) no-one denies that “don’t kill”, “don’t steal”, and “don’t lie” are moral rules’. He does note also that ‘the work of anthropologists has generally been used to show that there is no universal morality’ (Gert, 1988). Don’t Kill But are the sanctions against killing universally recognised? The former Yugoslavia scarcely conformed to this sanction in recent years nor have several of the states of Africa latterly. Some of the butchers culpable for some of this slaughter now seem to be celebrated local heroes with their followers. Furthermore, a number of states in the United States have restored capital punishment, presumably in response to popular pressures. There is something depressingly atavistic about the principle of an eye for an eye. Then there is the disagreement between Right to Lifers and pro-abortion activists over whether abortion of a foetus is killing or not. The debate over voluntary euthanasia adds to this confusion for many, again centring around the injunction ‘Thou shalt not kill!’. 53

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It is useful to consider a few hypothetical illustrations so as to demonstrate the issue of moral dilemma, of having to make a choice, sometimes literally, about who will live and who will die. You are travelling in a remote principality in a distant continent controlled by an undisciplined military dictatorship. You are detained. The Leader of the Government advises you that nine insurrectionists have been captured and will be shot at dawn. One only will be shot, however, so long as you choose that one. What do you do? This is a clear case of conflicting moral positions. The consequence of opting for the ideal moral position here (I will not decide who the one person to be killed is because I am a moral agent and will not cause another’s killing) is, by default, the same as condemning all nine to death. Not to choose from either of the two alternatives does not absolve one from the consequences which follow. Not to choose is tantamount to deciding all nine should die. Well, what do you do? Most people confronted with this hypothetical moral dilemma nobly offer themselves as a substitute victim, supposing this will save all nine. A very safe choice, allowing for the suppositional nature of the dilemma. What if the retort is, ‘No, we will not accept. Either you decide by choosing the one, or by refusing to do so, effectively condemning nine to execution.’? ‘Oh, and I forgot to add,’ says the cheerful chief dictator, ‘your son, currently held in protective custody, will join the nine who will die.’ Well, think about it. What do you do? The undeniable fact is that you are not a free moral agent in these sorts of circumstances. You cannot set the widest range of alternatives, available in normal conditions, from which to make a selection. Someone or something (such as circumstance) limits your options and you cannot change this condition. Unfortunately, the consequences of a compromise in decision-making in public life (settling for the second best rather than the ideal) can result in a better outcome than that which would come from adopting the best abstract moral principle. In essence, the hard cases presented by real life challenge the notion of absolute morals and ethics, of invariable universal moral principles. Don’t Steal There are sound reasons for this moral injunction. But what of the case of a poor man, starving, with his wife and family dependent on him for their existence, who is denied food by a rich person living with abundance, in circumstances where there is no other source of sustenance available? In that case, he not only has a right to steal but a duty to do so. As Bertolt Brecht said on one occasion, first comes bread, then comes morals (Brecht, 1979, Act II). Don’t Lie In 1986, I appeared on a ‘Hypotheticals’ television programme. At the end of the programme, the presenter developed a hypothesis of a more than mildly deranged US President in control of the American nuclear arsenal who had a dangerously psychotic 54

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dislike of an imaginary leader of a make-believe country in this region named Malaria. The President announced that if that leader exploded a nuclear test weapon he would immediately invade Malaria. The Russians, then the international bad guys as the Communist Soviet Union, declared that, in that event, they would then attack America. A world nuclear war is imminent. Only I in all the world know that leader had indeed exploded the test weapon through our own monitoring measures. The President asks me if I know whether the test occurred. ‘How do you respond?’ challenged the programme’s presenter. I said I would lie. I still believe that was the best—and in such real circumstances would be the morally right—response (Robertson, 1986, pp 285–7). These hypotheticals have demonstrated several key points. First, there have to be exceptions to the rule, even in the case of moral standards. Circumstances of extreme necessity can critically limit and determine what our real and practical choices are in difficult cases. Secondly, moral principles and the virtues ethics draw down from moral codes are not invariable in all cases. Necessity can determine what we have to do in a certain set of circumstances.

The Dirty Hand Debate Given the above points, I do not understand the theoretical moral philosophers who make the ‘clean’ or ‘dirty hands’ distinctions. I cannot see how one can have clean hands by clinging to an abstract text book principle which causes more carnage or suffering when practical commonsense, applied where choices are limited, can greatly reduce that consequence. I will give an example of the sort of judgement which perplexes me. Steve Buckler says: The disturbing fact that, in a political context, one might frequently have to act badly in order to act for the best marks out a key sense in which political morality may be seen as a distinctive and problematic area. (Buckler, 1993, p 105)

Those familiar with the debate between the deontologists and consequentialists on dirty hands will know that Thompson, Walzer and others have spent considerable energies debating its pros and cons. Machiavelli, of course, took it to the extreme, arguing that the good leader has no other option but to commit questionable means to achieve his ends. Weber, while acknowledging the desirability of reaching those ends, would add that man must expend considerable energies considering the moral implications of his action. Thompson argues that ‘dirty hands’ are fine, so long as they are attached to a democracy (Thompson, 1987). Walzer goes further, saying that we should not want to be governed by people who won’t violate moral rules when they have to achieve a better outcome (see, eg, Walzer, 1977). Walzer is in fact a consequentialist in his attitude towards the nature and realities of political decision-makers but resists the consequentialist conclusion that what is necessary is justified. He reverts to deontologist principles of what is ethical, the ethical judgement which directs the agent. 55

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Sissela Bok argues, I think unpractically for some cases, that ‘deceiving the people for the sake of the people is a self-contradictory notion in a democracy, unless it can be shown that there has been a genuine consent to deceit’ (Bok, 1980, P 172). I am not implying that moral standards and virtues propounded in our social code of ethics should be dismissed casually by those in public affairs. What I am trying to say is that the notion of what is a virtue is not something that is invariable, universal and eternal (McIntyre, 1985). Accordingly, our moral codes do evolve over the generations. Just recall the social stigma and harsh punishment for certain forms of sexuality or motherhood out of wedlock, less than a generation ago, because these were considered intolerably immoral. Many of them are now so well established in Western society that they scarcely rate comment when encountered.

MORAL AMBIGUITY, POLITICAL PRACTICE AND ACCOUNTABILITY The complexity of political processes, covering congeries of people of various values and beliefs, and the evolution of important social values over time, leads to this problem of moral ambiguity. This is especially so in the relations between nations. An individual can apply a rigid set of ethical principles to the way she or he acts out her or his life. A politician or a public service official has to strike a principled and working balance out of the difficulties and differences thrown up by the ambiguities of politics, ambiguities thrown up by different outlooks between individuals as such. On the really difficult issues (those rife with political, moral and ethical ambiguity), the decision-makers must expect to be damned by those who feel their views have lost out or not been sufficiently attended to in this process. As long as the decisionmaker believes in the acts she or he has decided upon, carries them out as an agent influenced by moral standards and ethical principles and agonises over the correctness of those actions every inch of the way, that person is discharging her or his moral duty with integrity and, hopefully, with wisdom and compassion. Buckler has commented: Where hard cases arise and common ways of proceeding fail, our capacity for moral sensitivity and an appreciation of the complexity involved in acting with integrity are likely to become critical. Hence, one’s appreciation of oneself, one’s standpoint and the responsibilities one is capable of acknowledging become important. (Buckler, 1993, p 67)

Undoubtedly, this sounds defensive to the moral purists whose greatest strength is they have never had to, and probably never will have to, make practical decisions designed to get the best outcome for the public good from difficult ambiguous political circumstances. However, the public too should take a critical stance to such statements. They must be rigorous in demanding accountability from their public office agents where a compromised policy has been adopted. They are justified in being trenchant in their criticisms of what they regard as shortcomings in such policies and sternly 56

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retributive where obvious moral dereliction and fault are exposed in the adoption and or application of these policies. The unavoidable use of ‘dirty hands’ cannot be accepted as an alibi justifying moral slackness. The cases for necessity justifying temporising, as some would have it, with high moral principles in order to get the best public interest outcome from limiting circumstances must be rare. Where this sort of choice must be exercised, these cases should be put to the public for their moral assent, either at the time of the action or if there is a difficulty about that then, as can happen in international relations or war, as soon as sensibly practical. Government is regularly performing out in the equivalent of the political village square seeking to justify itself to the interested masses before the charges of bad faith levelled by its organised critics. As a former foreign minister, frequently exposed to this experience, I can assure you there are times when, being on the receiving end, one feels like venting extreme frustration at being the victim of such cruel injustice, for one is doing one’s best in a difficult set of circumstances. But in quieter, reflective moments—of which, alas, there are too few for a busy minister—one acknowledges the importance of this process of public accountability in a democracy. Of no less importance to the accountability factor is the fact it maintains pressure on the minister to keep performing. It prevents her or him from sliding into a quiet lifestyle, playing the issue sotto voce, as it were. We could not cohere and function as a civilisation if we did not acknowledge, by our conduct, our responsibilities to others. In particular, not to do them evil. Ethics are principles by which, inter alia, to judge the exercise of authority. The judges are, of course, the citizens; their criteria is what is best for the ‘common good’. The dilemma arises in defining the ‘common good’ and in determining whether this definition should come from the citizens up, from their leadership down, or in fact, whether it is, in practice, a two-way deal. As a humanist, I would be inclined to the view that defining the moral or ethical standard of the day is a two-way process, with the government of the day fulfilling both the roles of listening and educating. Departures from conventional moral standards should be exceptional and must be justified by absolute necessity. Some real-life examples can illustrate the justification for such deviations. But in some cases, the deviation can be an abuse of public trust rather than protection of ‘the common good.’

A Few Examples to Ponder President Lincoln has been condemned in some quarters for conducting the American Civil War with a compromising standard towards the slavery issue. His first duty was to fight and win, then to build on that success, pushing ahead in areas which, because they had been so sensitive and potentially divisive during the war, were necessarily deferred to the dominant imperative. That was victory at war. Only then, with the Union intact, could social progress and political emancipation proceed more confidently.

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Thus it was as a morally brave man that Lincoln wrote to Horace Greely, then editor of the New York Post: If I could save the Union without freeing any slave I would do it; and if I could save it by freeing all the slaves, I would do it; and if I could save it by freeing some and leaving others alone, I would do that. What I do about slavery, and the coloured race, I do because I believe it helps to save the Union, (cited in McPherson, 1989, p 510)

The historical record, I believe, undeniably reveals Lincoln’s deep belief in the need to end slavery, to emancipate African-Americans. Before he could do that he had to confront and succeed with a much larger truth. A more recent instance is the decision to use the atomic bomb on Hiroshima. Here the will of the Allied world to end the war conquered the moral dilemma of sacrificing an entire city of civilians. Even though history acknowledges Oppenheimer grieved about what he would unleash, it records him also, on hearing of the successful mission by the ‘Enola Gay’ as walking into a meeting of scientists: ‘like a prizefighter…clasping his hands together above his head as he came to the podium’ (Goodchild, 1980, p 167). History has dealt at length with this decision and the subsequent decision to bomb the city of Nagasaki with its large civilian population. The Target Committee embarking on the macabre exercise of choosing a priority list of target cities for the A-bomb looked for ‘large urban areas of not less than three miles in diameter existing in the larger populated areas’ (Bernstein, 1995, p 140). The few voices opposing use of the bomb against civilians were drowned out. Nobody at the top in Washington wanted to adopt the conventional code of not intentionally killing civilians. Short of briefly toying with the idea of dropping a demonstration bomb elsewhere before Japanese witnesses, no real alternatives were considered. In the expedience of the time, the morality of the day was summed up by President Truman in a letter to the Federal Council of Churches of Christ. ‘The only language they seem to understand is the one we have been using to bombard them. When you have to deal with a beast, you have to treat him as a beast’ (Bernstein, 1995, p 152). In the mix of considerations by those deciding whether, when and where to use the bomb and the political realities of secretly diverting the project’s $2 billion budget at a time of scarce resources weighed as heavily as the realities of the predicted destruction. Postwar power balances were also important; the United States wanted to send the Soviets a message. This is a stark example of the interplay of ethics and politics and the ultimate responsibility to the public. While the public, politicians and even those working on the Manhattan Project were no doubt deceived and manipulated to achieve an end, we must be very cautious about using hindsight and today’s morality to judge the politics of the day.

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Who Judges? How do we monitor, to some worthwhile extent anyway, what our public representatives are doing in highly contentious circumstances to ensure our political interest is being honestly addressed? As is well documented and generally agreed, the war in Vietnam was the dawn of the pivotal role came to be played by the media (especially television and all its subsequent technological developments) through its ability to bring the grim realities of war and body bags nightly into the living rooms of the Western world. Since then, the nascent power of the media (already powerful in the printed medium) has become a central player in the assessment of public morals and ethical behaviour. Nowadays, our daily exposure to ‘dirty hands’ comes to us via journalists and the media. They are certainly our primary source, and for a majority of people the only source, of political reporting and analysis. This leaves them in a powerful position when it comes to prevailing moral standards. It can work to enforce them, to manipulate them; in fact, I have recently seen journalists referred to as ‘part of the democratic problem’ in the United States! (O’Keeffe, 1996, p 14). The power of the media as not only a reinforcer or questioner of the prevailing morality but also as a scrutiniser and reporter of political actions has grown enormously over the last couple of decades, parallel to the growth in the technology it harnesses. An example of its potency can be found in the recent Operation Desert Storm in the Gulf War, when American military authorities sought to limit the access and role of the media. In short, woe be the politician or any public figure now caught with unexplained dirty hands; there are over 120 satellites hovering above the earth ready to beam you live into the planet’s estimated 1.2 billion television sets! The controllers of this new player in the game are in a very powerful position and we can only hope that they too will act in the best interests of the common good, and one day adopt for themselves a code of ethics as rigorous in nature as that which they seek to impose on others in public life. The problem of near monopolistic ownership in some areas of the media makes this a crucial issue in the consideration of the impact of media on ethics in political and public life.

RULES OF THE GAMES Let us move to another fact of public life and ethical conduct at a more prosaic but nonetheless essentially important level. We should now examine what protections we can use on behalf of both the politician and the public concerning private interest and public duty. The Rt Hon Lord Nolan addressed this issue serving as Chairman of the British Parliament’s Committee on Standards in Public Life (Committee on Standards in Public Life, 1995). He was appointed at a time when the British Parliament was suffering a series of scandals. (See Introduction for a brief review of the Nolan process and its continuing legacy.) Nolan’s committee sought to ease the risk of conflict between public and private interests. It established ‘Seven Principles of Public Life’: selflessness, integrity, objectivity, accountability, openness, honesty and leadership.1 59

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Nolan’s seven principles were meant to set an ethical framework from which to build a morally credible position. Morals are values on which to build judgements. Politics is the art of making judgments or balancing means and ends, of compromises for desirable outcomes in the public interest and, I hope, very much according to acceptable ethical standards. Experience from the US Congress in grappling with regulating political behaviour and ethics clearly demonstrates that extensive, rigid codes to regulate behaviour are largely doomed to failure.2 Indeed, as Jackson points out they are a waste of everyone’s time (Jackson, 1987, p280). I have no doubt attempts to legislate the same in the Australian Parliament would have a similar fate. There are several very good reasons for this, but overall we must remember a point that was succinctly put by Lord Nolan recently. [I]f we are to trust people to govern us—indeed if we have elected people to govern us— we must allow them some trust in their ability to act honourably. If we bind them hand and foot with trivial rules, we shall get small-minded and unenterprising political leaders. (Nolan, 1996, p 15)

Issues to Consider in Constructing and Implementing Codes Legislate or learn? How can you legislate an ethical value that is learned by a way of living and supposedly practised by habit? Moral judgements themselves are often inconsistent; we have to think about them, reason and argue them and apply them according to the conditions and circumstances of the day. In any event, the bigger question is what do we do when the law and the government are immoral? Where would that leave any legal codes of ethics? Leadership Leadership brings with it a responsibility to maintain conduct above the general standard prevailing in the community. Leaders set examples. As John F Kennedy stated, ‘In public life we expect individuals to sacrifice the private interest to permit the national good to progress’ (Kennedy, 1955, p 7). When a code of ethics is applied to achieve these standards, it can make the standards seem impossibly high. Against this we must accept that the greater your power and influence, the greater the obligation upon you to avoid the appearance of abuse of that power and influence. But should we legislate a standard of political ethics that would be above the standard capable of being complied with by the general citizenry? How many of history’s great leaders would ‘scrub up’ to the ethical perfections the community demand today? Appearance It is not just the behaviour of the politician but the appearance which is the critical determinant in ethics debate.3 In other words, conduct which would appear to be improper to a reasonable, non-partisan informed person is in fact improper. Most 60

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commentators missed the relevance of appearances and nearly all missed the point that standards for political leaders are expected to be higher than those imposed on the general community. I am firmly of the opinion that once one opts for public office, particularly when one becomes a minister, one cannot possibly continue to own shareholdings at all, or to operate trusts. For example, former Australian Prime Minister Hawke insisted his ministers sell all shares (if they held any) when he became Prime Minister in 1983. That is the cost, the sacrifice of holding public office. During my 27 years as a Member of Parliament, I consciously forwent the opportunity of deriving what would have been compounded into an appreciable amount of wealth over that time, by resisting the temptation of buying shares in any private business. There are intangible rewards in public life that more than compensate for this foregone material improvement.4 The Code of Ministerial Conduct for the present Australian Federal Government, essentially a compendium of the provisions introduced by the previous Government, addresses the point: Along with the privilege of serving as a Minister there is some personal sacrifice… Although their public lives encroach upon their private lives, it is important that Ministers and Parliamentary Secretaries avoid giving any appearance of using public office for private purposes. (Office of the Prime Minister and Cabinet, 1996, p 10)

It goes further: Ministers are required to divest themselves of all shares and similar interests in any company or business involved in the area of their portfolio responsibilities. The transfer of interests to a family member or to a nominee or trust is not an acceptable form of divestment. (Office of the Prime Minister and Cabinet, 1996, p 11)

The code prevents Ministers engaging in any professional practice or the daily work of any business and directorships must be resigned except for family companies, and then only in a limited sense. We should perhaps look more critically at this latter interest as well. Even the option of blind trusts will not conform to the ethical expectations that are realistically placed on leaders and ministers. Experience in the United States has been that they do not, in practice, distance the politician from their investments, for it is simple enough to informally inquire of a friendly trusted about one’s investments or to steer a trust administrator towards an investment it is believed would be profitable. The blind trust option has serious flaws. More than codes You need much more than ethics codes. For such codes to work, there must be leaders who adhere to them and set an example. There must be consistent application of them, with appropriate and compelling consequences if they are breached. That such codes are easily malleable and that government’s can seek to publicly justify this malleability does place a question over their efficacy. In the United States,

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ethics codes have developed a cyclical history. At present, they are in one of their ‘tight’ phases. In Florida, it is currently against the law for a Senator to allow a lobbyist to buy them lunch! (The details of US state codes is discussed in Rosenthal, Chapter 2.) I have been lunched by the boards of some of Australia’s biggest industrial and mining corporations without in any way compromising my integrity and independence. This sort of prohibition is plainly silly. The US experience shows laws like these tighten and relax with the tide of public disquiet; that is, there is a fashionable swing about them. However, ethical standards should not be shaped by such fickle forces. Problems are not static There is no single simple solution to every moral problem. You cannot legislate in anticipation of every eventuality. This is because codes of ethics would never be able to deal with Plato’s noble lie or with the need for ‘dirty hands’ (or second best) examined earlier. Standards are fluid Standards of morality are necessarily fluid entities. They are continually challenged, changing, advancing, reversing, with and within generations. To follow the US approach noted above, this would mean constant revision, easing and tightening of the rules. The politicisation of ethics Even ethics is susceptible to the political game. Democrat Otis Pike remarked Congress that ethics: is taking up too much of your time and, worse, it is creating an atmosphere and an institution in which suspicion, bitterness, personal dislikes and private vendettas make co-operative efforts in writing laws increasingly difficult. (Pike, 1991, p 147)

The major defect with the US Congressional processes of legislating ethics is that in quite a number of instances the provisions have been misused for purposes of settling personal scores or have been abused to score political points. More than that, they have been used to manipulate party political activity against an opponent. (Smith, Chapter 3 illustrates the logic leading up to such action.) For example, the downfall of US House of Representatives Speaker James Wright was generally believed to have been engineered by Congressman Newt Gingrich for political purposes. Some also state that charges filed with the Ethics Committee against Gingrich over a book advance payment—and he was exonerated of the charge—were seen as political pay-back. (Sinclair and Wise, 1995, p 43).5 Campaign finance The cost of election campaigning today means that in reality all politicians continually operate in the shadow of personal potential conflicts of interest, because campaign fundraising must necessarily be an ongoing venture. 62

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The voice of the minority How do we deal with ‘pockets of ethics’, that is, electoral concentrations of people with different ideals and values? How does their representative speak for them contrary to prevailing ethics? The roles of the parliamentarian How should an elected representative of the people function: as a delegate from her or his electorate or as a trustee?6 My style was to perform both roles. I experienced no trouble being a delegate for the people of Oxley on a range of issues because I heartily shared their values. On other issues, like industry protection reform, social issues and personal rights like sexual preference, I functioned as a trustee. I was an advocate on these sorts of issues quite early, well before they became fashionable, because I strongly believed it was morally right to do so. I could not see myself as a servile, unprincipled delegate on issues in which I had no belief. Yet some legislators do exactly that. These issues embrace a range of important ethical principles. But how would you draft the principles which you believe should apply into a code? Not rules Finally, political ethics consists of judgments, not rules. All of this is not to say that we should not ‘tinker on the edges’ by utilising such mechanisms as public disclosure laws relating to finance, public funding of election campaigns,7 pecuniary interest register, Freedom of Information laws and high levels of party discipline.8 Protection for the whistleblower Additionally, numerous ‘watchdog’ committees and commissions at the state and federal level are needed to oversee the actions of our public officials. What more is needed, one may ask. Indeed, I feel the process is slowly suffocating freedom of expression and constructive thinking under fear of retribution before any one of a seeming host of censorship commissions. However, an effective legislative basis for protecting authentic whistleblowers should be enacted. A neutral, professional public service should not be an obedient, submissive and certainly not a servile service. It should function accordingly with a profound sense of moral purpose, and responsibility. The wrong doing or the wrongful intents of a government or a minister should be clearly explained to the responsible minister by his public service advisers. That is not a task to be taken on lightly, I acknowledge. It is particularly difficult for personnel lower down the hierarchical structure. If there is no other way of doing so for a morally distressed agent, then whistleblowing should be legitimate. A prime example of such protective legislative can be found in recent events in the UK. Sarah Tisdall, a filing clerk in the UK Foreign Office, recognised that Defence Minister Heseltine had misled the House with statements about cruise missiles. She

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blew the whistle. She was identified, charged and tried. She went to prison. She was right. Heseltine was wrong. His career continued to prosper. Hers was ruined. Clive Ponting, another British civil servant anonymously supplied information to a Parliamentary Committee which disclosed that Heseltine (again) had misled the House of Commons in regard to the sinking of the Argentine naval vessel, the General Belgarno. He had earlier supplied this information to Heseltine who failed to respond to it in a proper way. Ponting was charged, went through an expensive trial and eventually was acquitted. Heseltine’s political fortunes continued to wax. Tisdall and Ponting were people of great moral courage, the sort of courage that draws on a strong moral fibre and a brave, unflinching sense of personal rectitude which should be applauded in our sort of society. Neither should have endured their experiences as the price for their moral rectitude. It is just such people who should be protected by effective whistleblower legislation. Effective whistleblower legislation could establish, as a fact, that truth is the best policy rather than being a personal danger to a public servant. But whistleblower legislation should not protect the false accuser. There should be a price to be paid for that. The Australian Senate Select Committee on Public Interest Whistleblowing recommended in August 1994 this sort of legislative protection against bogus allegations, along with other important recommendations on educational and attitudinal matters.

CONCLUSION We live in undoubtedly confusing times. They are certainly times when we need to have faith in our elected leaders, when constraining them with a multitude of legally binding codes, laws and watchdogs might well improve the electorate’s ability to trust them but destroy their ability to respond to the electorates needs. In these times, like in war, perhaps some trust in our leaders’ abilities to act honourably—or, at the very least, a measured dose of this—might well be more in the public interest than the abstract moral ideal of writing into law the moral way in which we expect our representatives to behave. As illustrated earlier, sometimes the moral ideal must be forsaken for the second best, more practical and workable outcome. How is that provided for in a drafted, legal code of ethics? Yet acting in this way can be critical to protecting the public good. Politics is consistent with the highest standards of practical morality and should be practised in this fashion. If the highest abstract standards would, for instance, put blood on your hands while a practical response avoids this and is moral, you preserve clean hands and to do otherwise would be immoral. ‘We are not moral because of what we demand of others in rules and principles, but because of what we demand of ourselves in character’ (Jackson, 1987, p 287). We are all in the hands of humanity—if they come up ‘dirty’ we have only ourselves to blame. If our humanity fails, it is because we have failed to recognise and honour its

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essential principles. Books of laws and personal punishments are no substitute for that neglect of ours.

NOTES * 1 2 3 4

5 6 7 8

This chapter is based on the 1996 QUT Ethics and Public Life Lecture delivered by Mr Hayden. Included in Appendices. The press were quick to represent these as ‘seven commandments for politicians, while the rest of us have to have ten’! Mancuso, ch 5, and Rosenthal, ch 2 provide more in-depth assessments of US codification of ethics. Appearance is seen as a central concern in Rosenthal, ch 2, as well as in Kernot, ch 10, Mancuso, ch 5 and Burgmann, ch 9. I note I have, since leaving Parliament, as a matter of personal right in which there could be no conflict of interest and where there was not and could not be any privileged information available to advantage me, bought some small parcels of shares. Gingrich has subsequently had to apologise to the House for other misdeeds. See Mancuso, ch 5, for more on Wright and Gingrich. See Uhr, ch 1, for a thorough consideration of the notions and assumptions of role for parliamentarians. See Rosenthal, ch 2, for an assessment of the feasibility of public funding for political campaigns. Smith, ch 3, provides some comparative comments on the function of party discipline in legislative ethics.

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5 POLITICISING ETHICS Scandal and the American Experience

Maureen Mancuso

INTRODUCTION In 1991, Suzanne Garment lamented that scandal had become an overwhelming force in US politics, effectively pushing aside considerations of competence, efficiency, wisdom and rationality (Garment, 1991). In recoil from the horrors of Watergate, law-makers, the public and the media had whipped each other up into a permanent frenzy over issues of character, integrity and sometimes quite trivial lapses in judgment. House Speaker Newt Gingrich began his rise to prominence by commandeering ethical issues into service in partisan warfare and made his breakthrough by managing to redefine the 1994 congressional elections as a referendum on the characters of President Bill Clinton, House of Representatives ‘Boss’ and longtime Chairman of House Ways and Means Committee Dan Rostenkowski and the entrenched Democratic leadership.1 Yet for much of the 1996 presidential election campaign, candidate Bob Dole, struggling with his image as an angry old man, seemed reluctant to open up ‘the character issue’. However, when every other strategy produced no movement in the polls, Dole began to hammer away with vigour at opponent Clinton’s perceived flaws and foibles. He was surprised to find even this message produced no reaction. ‘Where is your outrage?’, he asked the American people. Part of that outrage was apparently suppressed, as voters ‘held their nose’ and re-elected—as they did in 1972 with Richard Nixon—an ethically ambiguous incumbent who had presided over an improving economy rather than gamble on a challenger touting impressive-sounding but selfcontradictory policies. Nevertheless, that scandal could become a presumptive trump card strategy suggests how institutionalised it has become. Another answer to Dole’s question was that his sought-after outrage was muted by desensitisation and familiarity with the same old acts of contempt. He was trying to incite fresh passions with largely stale accusations. After 1992 and 1994, Americans 66

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had almost become accustomed to hearing the President denounced as a corrupt, swindling, file-hiding, justice-obstructing womaniser. Only the last-minute revelations of the Democrats’ adventures in creative financing were new and they came to late to have much impact on the presidential contest, although they may well have affected the closer congressional races.2 Less than two years later, we are starting to see further evidence that seems to support a desensitisation theory. In mid-January 1998, the name of Monica Lewinsky exploded like a bomb over Washington. Media ‘talking heads’ sprouted up on television to predict that the President, alleged to have carried on an affair with the then 21-year-old White House intern and then pressured her to lie about it under oath (in a deposition given in the Paula Jones sexual harassment suit brought against him, now thrown out of court), would resign before his State of the Union address. The word ‘impeachment’ was bandied about as if it were a foregone conclusion. One week later, the talking heads were still frothing at the mouth but the reaction from the public seemed to be a great collective yawn. Clinton’s approval ratings, perhaps buoyed by a generally positive State of the Union message featuring the first balanced budget in 30 years, rose strongly to the highest level of his presidency. At the same time, as various leaks and snippets dribbled out of the investigation, polls showed that many Americans did not really believe Clinton’s carefully phrased denials of the affair but nevertheless approved of his policies and his handling of the job. Great torrents of concern for the nation’s moral fabric were shed but as of mid-February, the guiding principle of the public’s reactions seemed to be a kind of common sense, compartmentalised pragmatism. They had come to terms with not expecting moral leadership from this president and were prepared to judge and accept him on his performance as chief executive and world leader. In fact, the backlash against the media and the President’s accusers seemed to firm up his support and was picked up by the White House as part of an escalating counterattack against the independent counsel Kenneth Starr (originally installed to investigate Whitewater),3 who was driving the investigation. Long-term charges of political bias on Starr’s behalf were restated and his team was accused of criminally leaking grand jury testimony, coercing or even paying off witnesses and general prosecutorial misconduct. Meanwhile, media organisations, desperate for actual reportable facts, kept getting burned when their ‘reliable sources’ turned out to be neither, forcing them to retract potentially libellous accusations. Instead, the focus of many news reports seemed to be not what the principals were saying but rather what other news organisations were saying. This sort of media ‘feedback’) (in the science of acoustics, a term used to describe the harsh, screeching noise that a sound system produces when its primary input is its own output) did not impress the people who felt that the media were more concerned with being first than being right. Thus, the preliminary lesson to be drawn from the Lewinsky case is not that Americans had finally grown sated of scandal but that scandal had become almost self-generating; indeed, it appears that some sort of global wanning of the political temperature has permanently increased the scandal level. 67

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These developments are aspects of a worldwide phenomenon; electorates all over the globe have grown increasingly cynical, both more fascinated by and less tolerant of official misbehaviour. But the United States can still claim the title of Scandal Superpower, not only because, of its greater share of scandals but also due to the numerous and extensive rules it has adopted to address them (see Potts, 1998). When measured against the effort expended to eradicate them, the frequency of corruption and scandal in the United States is orders of magnitude greater than elsewhere. Yet despite all the wailing and gnashing of teeth, a high incidence of scandal does not necessarily require a high incidence of corruption. Rather, the large number of scandals may reflect greater zeal with which wrongdoing is pursued; Americans find what they look for, no matter how hard they have to search (Hayden, Chapter 4, makes this point quite strongly).

Scandal or Corruption? As Graeme Moodie has observed, scandal and corruption are two distinct phenomena, essentially independent of one another although they often occur in concert (Moodie, 1980). Most people tend to define corruption the way they define art or obscenity: they don’t know what it is but they know it when they see it. Ultimately, however, there is a widely accepted definitional core of political corruption: the perversion of public office or trust for personal or private gain.4 Scandal, on the other hand, is essentially a shocked response to a behaviour or incident. There is always an act that triggers a scandal but that act is not necessarily illegal, criminal or corrupt; it is simply ‘shocking’. Even though a scandal focuses on a perceived misdeed, the key to understanding scandal is to focus on those who are shocked and why they find the behaviour shocking. What generates the shock is difficult to pinpoint and categorise, much less predict. There has been a violation of some socio-cultural norm or standard but the scope and intensity of the scandal may not reflect the importance of the norm or how thoroughly it was violated. Much of the reason that scandal is not a linear function of corruption can be traced to the media as the primary conduit conveying information about activities of officials to the public (Rosenthal, Chapter 2, and Tanner, Chapter 7, expand on this point). For good motivations or bad, the media never just presents information but invariably characterises, labels, skews and ‘spins’ the story; thus, it can inflate or suppress the shock unleashed by the news it reports. The study of corruption focuses on the parameters of the act itself; the study of scandal focuses on the depiction of the act and how that depiction is consumed by the public.

The US Taste for Scandal This distinction provides our first clue toward explaining why US politics is so scandal ridden. No matter what else commentators say about the United States, most have agreed, from the time of de Tocqueville right through to the present, that the US public is a voracious consumer of things scandalous. And their media and government 68

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have not shirked from the task of feeding this prodigious appetite. Grist for the scandal mill comes from all branches of the government and in every shape, size and variation of behaviour imaginable. Gifts have always been troublesome, from the infamous vicuña coat received by Eisenhower’s chief aide Sherman Adams to poor little Checkers to the hospitality enjoyed by former Agriculture Secretary Mike Espy.5 The public is always revising its estimation of how low congressmen will go in search of an extra dollar. Will they take pay-offs from FBI agents in sheik’s clothing? Seven said ‘Sure!’ Will they kite cheques from the House Bank?6 No problem, said many, including Ronald Coleman (D-Texas) who bounced 673 and was still re-elected. Are they above laundering money through their private post office? Dan Rostenkowski, who seems to have confused US postage with trading stamps, tried in vain to concoct an answer for federal prosecutors.7 Some public officials don’t even need a financial incentive. Along with President Clinton, Senator Bob Packwood and HUD Secretary Henry Cisneros have been accused of looking for an especially private sort of gain. Others simply wanted a free ride; Bush White House Chief of Staff John Sununu flew the United States Air Force to visit his dentist and attend a stamp show. Clinton’s White House Director of Administration, David Watkins, took his boss’s helicopter to play golf. It only cost the taxpayers $13,000. And then there are the biggies: Iran-Contra, the HUD mess, the Keating Five and all the associated savings and loan fiascoes, Whitewater and, of course, the implosion of former House Speaker Jim Wright over a poorly conceived and phenomenally lucrative book deal (for details on these and other cases, see Sabato and Simpson, 1996). Since 1970, a total of 30 members of Congress have been convicted of crimes, from racketeering to perjury to sex with minors. In 1993 alone, the Department of Justice’s Public Integrity Section identified 2,733 ‘corrupt public officials’ (elected or appointed officeholders) convicted, indicted or awaiting trial on charges of bribery, fraud, extortion or conflict of interest (Gross, 1996, p 67). This sampling attests to what Garment called ‘the awesome ingenuity of American entrepreneurial energy gone awry’ (Garment, 1991, p 114). In an attempt to categorise this litany of scandal, Anthony King suggested three broad categories—sex, money and power—and proposed that nation-states could be compared according to their proclivities (King, 1984). The British seem to have a particular fascination with and penchant for exaggerating sex scandals. Americans are particularly obsessed with money.

The Cultural Explanation Observed differences, such as these, as well as the variation in number and frequency of scandals, are often attributed entirely to cultural factors. The notion that America’s distinctly entrepreneurial mindset provides a license to bend the rules is a common explanation of its propensity for scandal (Atkinson and Mancuso, 1992). Similarly, Americans are often noted for the exceptionally adversarial relationship they have with their government and government in general. A culture inherently eager to think

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ill of and find fault with its public officials might well be expected to experience more frequent outbreaks of scandal. The harder you look for trouble and misbehaviour in a complex system, the more you are likely to find. Eisenstadt and others have pointed to the dominance of Protestant Christianity in the United States (Eisenstadt et al, 1978). The religious rhetoric of continual reformation and purification is mirrored in the political culture. Despite an institutional separation of church and state, political discourse in the United States inevitably takes on religious overtones; policies and officials are evaluated against moral standards of good and evil, sin and redemption. Violations are confronted with a sense of self-righteous indignation that can amplify and perpetuate the shocked response of a scandal. While these cultural explanations certainly have credence, they are not entirely persuasive. Cultural exceptionalism is at best part of the equation. I argue that it is the characteristics of US political institutions which account more fully and precisely for the high incidence of scandal rather than qualities of US mass political culture. In particular, three institutional arrangements are crucial: the separation of powers, the US conception of representation and the uniquely US propensity to define institutions in terms of rules.8

SEPARATION OF POWERS The separation of powers pits institutions against one another in a unique way. From this basic arrangement emanates a host of structures and characteristics that result in a political environment in which almost everything is contestable. This constant, manysided competition provides not only numerous opportunities for the mischief that can trigger scandal but also a greater capacity for investigation and scrutiny. A Westminsterstyle opposition is obliged to critique and annoy the government but it has little effective ability to frustrate or investigate. Moreover, this antagonism is almost entirely channeled along the single dimension of party affiliation. In Washington, however, a built-in institutional antagonism underlies and sometimes overshadows the partisan divide. Congress, the White House and the Supreme Court are each constitutionally and legally charged with watching the others and are given specific powers of investigation, approval, scrutiny and oversight.

Mutual Scrutiny The basic powers originate in the Constitution; others, like those of congressional committees over their corresponding executive agency, have arisen through statute. All are long-established and provide ample opportunity for discovery and motive for exaggeration of potentially scandalous behaviour. Many scandals develop as Congress pursues executive misconduct. The Committee Hearing as public spectacle, pioneered by Joseph McCarthy in the 1950s, came into its own during Watergate in the 1970s and has lately become almost a parody of itself. Indeed, during the Clarence ThomasAnita Hill inquiry,9 the sound bites of Senator Teddy Kennedy posing outraged questions to an accused sexual harasser provoked in themselves a small scandlette on 70

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top of the primary scandal.10 And of course one of the most poignant aspects of the Whitewater hearings, at least for Democrats, has been the presence of Senator Alphonse D’Amato—himself no stranger to ethics troubles—as the self-righteous chair.11 A particularly contentious development along these lines has been the use of special prosecutors. Originally designed to provide Congress with an independent investigative facility (in extreme cases, implicating the White House or the Department of Justice), the special prosecutor has come to be relied upon almost routinely for inquiry into allegations of all kinds against the executive branch, even those of a strictly personal nature. In Watergate’s ‘Saturday night massacre’, Nixon was eventually able to dispose of troublesome Special Prosecutor Archibald Cox with a certain amount of bureaucratic carnage because Cox had only been appointed on an ad hoc basis. Congress responded in the 1978 Ethics in Government Act by enshrining the office of the Special Prosecutor in statute, outlining specific criteria requiring appointment, and safeguards against executive interference. In 1983, Congress changed the name to the more neutralsounding ‘independent counsel’ and in 1987, mechanised the process further by curtailing almost all discretionary authority the Attorney-General’s Office had over appointment of counsels (Harriger, 1994, p 261). Allegations that cannot be clearly and quickly dismissed now require an independent counsel investigation and any Attorney-General reluctant to make such an appointment risks charges of a cover-up. Either way, the ante is raised and even the call for a counsel can fan the flames of a smoldering scandal (compare this with the account of the Canadian Ethics Counsellor in Wilson, Chapter 6). Once installed, independent counsels have few limits on the scope of their investigations and can pursue almost any thread of evidence, with ample resources and unlimited time. In the Iran-Contra scandal, these powers ran right up against Congress’ desire to grab some of the spotlight itself. Independent Counsel Lawrence Walsh has blamed the paltry results of his multi-year, mega-dollar investigation on this desire (Garment, 1991, pp 198–222).12 The congressional investigating committees, eager for tasty sound bites, granted immunity to many of the principals in exchange for televised testimony, immunity that ultimately undermined Walsh’s investigations and overturned the convictions he obtained. The Clinton administration chafed for four years at the persistence and expansive scope of Whitewater counsel Kenneth Starr and, after the Lewinsky file was opened, accused him outright of participation in a right-wing conspiracy to undermine, if not topple, the presidency. Further, its questioning the need for the renewal of the counsel during the 105th Congress and suggestion that there be an independent counsel to investigate the conduct of this independent counsel bode ill for the institution’s survival in its current, virtually unrestricted form. The executive branch is not without the ability to counter-attack. In 1978, the FBI launched its Abscam sting operation, without the knowledge or approval of the legislature and snared seven members of Congress.13 Interestingly, Congress responded with a special investigation into the FBI’s actions but was ultimately unable to convince the public or other governmental institutions that the executive branch had overstepped its authority. More recently, the congressional ethics committees, recognising the 71

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unavoidable involvement of outsiders in the scrutiny of members, has increasingly resorted to independent counsels—who, though largely autonomous, are still employees of the executive branch—to investigate allegations against members of Congress, as in the cases of Jim Wright and the Keating Five.14 In all these scandals, neither branch is particularly eager to involve the other in its internal investigations yet at the same time, each recognises that in-house responses to scandal almost always fuel suspicion of a coverup. No one had missed Watergate’s prime lesson: that a coverup is the most damaging form of scandal. Even the Supreme Court has managed to get into the act. When the House of Representatives denied Adam Clayton Powell his seat in 1967 on the grounds that he had misappropriated public funds, the court not only lifted the exclusion on constitutional grounds but also rejected Congress’s argument that for the court to interfere in this way would constitute a violation of the separation of powers doctrine.15 And interference and oversight is not limited to the three branches. The public interest group Common Cause has made frequent use of the provisions which allow outside organisations and even private citizens to bring complaints and suspicions before the congressional ethics committees. This fundamental interdependence of the branches of government maintains in each a powerful incentive for scrutiny of the others. This struggle is most obvious between Congress and the White House, which treat power and morality in Washington as a zero sum game: any perceived lapse by one must lead to a gain by the other. Institutional warfare on this scale is simply not evident in other Western democracies. The result, in the US case, is an enormous inherent capacity to seek out and reveal scandalous behaviour.

REPRESENTATION

Representative vs Legislative Autonomy On the other hand, the characteristics of representation in the United States provide an expanded capacity for indulging in scandal. The founders linked to the separation of powers a strong liberal conception of representation (see Uhr, Chapter 1, for an examination of the ethics of representation). In the United States, the question for legislators is not what you represent but whom? Representatives, owing their election not to a national party competition but to their ability to cultivate a ‘personal vote’, are closely tied to the population in the particular geographic district they represent. Representation has always been of persons; the representation of interests has been viewed as an inevitable evil to be tamed by a well-constructed government (Rosenthal, Chapter 2, examines this point with regards to theory and practice). Organised interests—factions—have always been considered a potential threat to the exercise of unfettered judgment (Atkinson and Mancuso, 1991, p 471). Members of Congress are free to voice concern for broad societal issues but they will typically emphasise

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how such concerns are also, or especially, important to their constituents. This kind of requirement is simply not evident in parliamentary systems. Thus, while representatives in the United States will always serve organised interests, they endeavour to do so from the point of view of their district or state. This narrow, almost puritanical view of representation increases the scope of possible scandal by restricting the boundaries of acceptable representation, even as it multiplies the sources of temptation. The Keating Five fought accusations that they had accepted large campaign donations in exchange for intervening on behalf of Charles Keating with federal regulators by attempting to claim Keating as a constituent.16 The fact that the senators represented four different states merely demonstrated a certain creativity in their definitions of a ‘constituent’. This increasingly popular blame-avoidance strategy worked for four of the five; Alan Cranston, the fifth, may only have been singled out because the donations he accepted were quantitatively larger rather than qualitatively different. The underlying principle was clear: these experienced senators believed, like most of their colleagues, that the system of representation legitimises otherwise scandalous activities when undertaken in the name of constituency-service (Smith, Chapter 3, demonstrates the existence of a different ‘insiders’ (legislators’) view of ethical behaviour). Whether or not the public accepts this sort of definitional elasticity, the senators resorted to it because the range of interests considered acceptable to represent is so narrow. This lack of representational autonomy—the inability of members of Congress to expand the parameters of their representational role—leaves them particularly vulnerable to any hint of special pleading or sweetheart deals that cannot be rationalised at the constituency level. On the other hand, US legislators have unparalleled legislative autonomy; they are essentially free to debate and decide policy questions and national issues according to their own determinations. There are really no backbenchers and potentially every vote counts. The independent power base granted to Congress under the separation of powers, combined with the personal character of liberal representation, has fostered the notion that each legislator is a legitimate decisionmaking centre. This in turn has led to an explosive growth in the staff and influence of individual members. With a staff budget of well over half a million dollars, each congressperson is no longer just a vote in the chamber and constituency advocate but, according to Salisbury and Shepsle, a formidable congressional enterprise (Salisbury and Shepsle, 1981, p 373). Those in privileged chamber or committee positions are even better situated to influence both legislative and executive actions. The result is a legislature of 535 very attractive targets for influence. Thus, paradoxically perhaps, members of Congress, denied the ability to legitimately represent more than constituency-based interests, are nonetheless bombarded with opportunities to promote others. The commandments of representation are strict and severe but they are surrounded by temptation. The most successful tempters, like Keating perhaps, recognise the importance of the constituent connection and attempt to cloak their requests and agendas in the respectable garb of constituency demands. The campaign finance system only compounds these difficulties by requiring candidates to bear personal responsibility for raising astronomical sums (for additional 73

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information on campaign financing and its impact on ethical behaviour, see Rosenthal, Chapter 2, and Hayden, Chapter 4). It has been estimated that a representative needs to raise on the order of $17,000 per week in order to mount an effective re-election bid (Thomas, 1994, p 112). Party support accounts for only a fraction of the funds a successful campaign requires. In other words, there are hordes of individuals, interest groups and political action committees (PACs) lining up to shower money upon members of Congress in desperate need of funds. According to Kevin Phillips, Washington today is being held hostage by special interests. It is an arrogant Capital controlled by arrogant capital and arrogance of this kind is a fertile breeding ground for scandal (Phillips, 1994, pp 195–8). The process of representation in the United States is structured so that, to avoid the possibility of scandal, representatives must maintain themselves in a very unstable equilibrium. They are balanced atop a tiny perch of acceptable representative tasks, carrying a heavy package of power and buffeted by gusts of ‘soft’ and ‘hard’ money. It is no surprise, therefore, that they have sought protection in an increasingly complex web of lifelines, buckles and stays: rules, regulations and codes. And while these particular problems of representation apply per se only to Congress, the ethos generated looms over all of Washington. Although cabinet secretaries, for example, have no constituents as such, the range of acceptable interests they may represent is similarly restricted. And the fragmentation of power means that, like the legislature, the executive branch is filled with numerous semi-independent pockets of influence which inevitably attract the attention of organised interests.

RULES From its inception, US politics has been defined by rules. The founders expected men to be beasts and factions to behave with despicable selfishness. Their solution was a set of rules designed to check these tendencies and redirect them toward common goals. Since then, the scope and number of rules has exploded but there has been little effort to capture and promulgate overarching ethical principles (Thompson, 1995). Rules beget both loopholes and rule-minders, both of which beget more rules. While the US government was at one time characterised by informal and collegial self-regulation, over the past 30 years, and especially since Watergate, it has developed an extensive, permanent regulatory edifice which emphasises the individual official’s personal legal responsibility for resolving ethical dilemmas. In 1968, the Senate and House incorporated written ethics provisions into the Standing Rules and created permanent standing ethics committees in each House. In the 1970s, Congress revised these provisions and presented them as codes of conduct, signaling a shift from an informal conglomeration of norms and folkways to a more formal network of laws, rules and precedents. Other systems have moved in the same direction but none at the same frenzied pace as the United States.17 The Ethics in Government Act of 1978 codified financial disclosure requirements and conflict of interest provisions for all three branches of government. The disclosure provisions pertaining to Congress are interpreted and enforced by the

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congressional ethics committees. The Department of Justice, however, has separate authority to seek civil and criminal penalties. All federal officials are subject to the nepotism law, honoraria restrictions, ‘revolving door’ limitations, bribery legislation and laws governing election practices. These common ethical rules are supplemented by specific regulations as determined by the individual branches. Members of Congress, cabinet secretaries and bureaucrats are required to list in detail the sources of all income and investment, including rough amounts. They must then take steps to distance themselves from the interest either by divesting, placing assets in a blind trust or recusing themselves from related decisions. They must declare all gifts received; value limits, on a per donor per year basis, apply. This sort of specificity and micro-management cannot be found in other political systems (see Wilson, Chapter 6, and Hicks, Chapter 8, for the Canadian and New Zealand cases respectively). These regulations can be considered successful if success is measured in an increase of scandals involving their violation. But every set of rules contains a set of loopholes and these particular loopholes were soon discovered and exploited. The most dramatic were the honoraria and book royalties provisions which technically allowed Jim Wright to evade the spirit of outside income restrictions.18 The resulting scandal coupled with outrage at the possibility of a self-congratulatory congressional pay raise, inspired the Ethics Reform Act of 1989. This Act closed the honoraria loophole and significantly tightened other restrictions. But it only took a few years before members found that their private bank, post office and dining room could be milked for free credit and possibly free money. These scandals have been dealt with on an ad hoc basis, but legislation on the scale of the 1978 and 1989 acts was defeated in the Senate, just prior to the 1992 election. This leaves open some particularly troubling practices, including use of the frank and the acceptance of hospitality from lobbyists.19 On the supply side, campaign finance has gone through repeated attempts at reform. In 1972, candidates were required to disclose their campaign spending. Concern about the visibility and accountability of campaign donations led to contribution limits and the creation of political action committees in the early 1980s. Conceived as an innovation which would purify campaign finance by exposing it to the sunlight of disclosure, the PAC legislation merely institutionalised and legitimised an entire industry devoted to funneling money from organised interests to political enterprises. It also created a new form of scandal: the ‘my opponent takes too much, or the wrong kind, or even any PAC money’ attack. Unaddressed loopholes like ‘soft money’—the virtually unrestricted donations that are nominally given in order to support local and state ‘party-building’ efforts but usually somehow end up in campaign war chests—still survive and may have long been protected from scandal by their complexity and obscurity, as well as their bi-partisan usage. In 1996, however, the media spotlight finally seemed to find figures onto whom this nebulous concept could be pinned down: wildly successful Democratic fundraiser John Huang, a group of generous Buddhist monks and several reputed gangsters who had their pictures taken with the President after contributing unknown sums.20 75

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The network of interacting rules that now governs official behaviour has several effects. First, each rule embodies in its violation a guaranteed instance of scandal. Arguably, the establishment of a rule usually reflects some expressed distaste for a previously allowed practice, but no one knows how widespread this distaste actually is before it gets subjected to scandal hyping. Secondly, the explosive proliferation of rules has only emphasised the negative, compliance-oriented ethical atmosphere of Washington—what Jennings has termed ‘minimalist ethics’ (Jennings, 1985) and what I called in the British House of Commons the ‘Entrepreneurial’ mindset (Mancuso, 1995)—that any activity not explicitly forbidden is tacitly permissible. This mindset has a more comfortable fit in the US system than in Britain but it still leads to the loophole mentality. Thirdly, the rules are instrumental. They further extend and specify the institutional game, but do not embody any moral consensus. Instead of declaring outside income in general to be ‘conduct unbecoming a member of Congress’, the rules establish specific, legalistic prohibitions against specific forms of income. To some degree, the sheer volume of rules has subverted whatever ethical consensus might have emerged from the collegial atmosphere of governing elites. Officials seek only to comply rather than achieve a sense of ethical leadership. Finally, and most important for the proliferation of scandal, each ethical rule adds another weapon to the partisan arsenal. Increasingly, ethics allegations have been employed in the routine partisan conflicts of Washington life. The idea is not new— Democrats and Republicans have always been calling each other crooks—but the intensity and effectiveness of the tactic is a recent development. This use of ethics charges in an increasingly ideological and less concrete party struggle has helped to weaken the traditional ties of collegiality which had protected the civility and comity of political debate. In his suicide note, Deputy White House Counsel Vincent Foster wrote that ‘Washington is a place where ruining people is considered a sport’. But according to Bill Thomas, the poor guy got it all wrong. The kind of personal attacks by political foes that apparently pushed Foster over the edge aren’t sport; they are serious business (Thomas, 1994, p 237).21 Innovators like Newt Gingrich, who have perfected the techniques of orchestrating the ethics apparatus toward maximisation of a desired shocked response, can take most of the credit for making it this way. His rise has only ensured that his oncedisparaged ‘bomb-throwing’ will continue to be imitated. The media have only been too happy to assist. As the conduit between exposer and public, they have seemingly redefined the emphasis of news about government. According to Lichter and Amundson, coverage of scandal has risen from 4% of all television news about Congress in 1972 to 17% in 1992. Scandal is now the second most common topic, after policy, of news about congress. Even in the mid-1980s, policy stories outnumbered scandal reports by 13 to one. Since then, the evening news has shown nearly one scandal story for every three issue stories. Coverage of policy has correspondingly declined (Lichter and Amundson, 1994). The media are paying less attention to Congress and the White House as institutions and more and more to the behaviour, or mis-behaviour, of members and staff. In part, this negative emphasis reflects the realities of a competitive news business; a shocked 76

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response, even a semi-manufactured one, attracts readers and viewers. But it also reflects the increasingly derogatory and combative tone of intra-governmental dialogue. A scandal exposed by a reporter may be a big story; a scandal exposed by a highranking official and espoused by a congressional committee or independent counsel is even bigger news.

CONCLUSION Today, the public, the media, the congressional leadership and the President all seem to agree that ethical standards in Washington have reached an all-time low. It is a seductive belief, although observers of politics in the 1920s and the Gilded Age might well disagree. New records are being set for the number of officials under indictment yet, at the same time, the number of indictable offenses has grown even faster. It seems as though every ethics reform only serves as a constant reminder of past and potential abuses. Certainly there are questionable practices that ought to be curtailed but the US preoccupation with ruling out every possible avenue of misconduct seems to be counterproductive. Standards of conduct have risen but expectations have climbed even faster, as the focus on regulatory reform has in turn highlighted scandal and weaknesses. A more rewarding strategy for ethical reform might instead focus on the institutional factors which make the US government so prone to scandal and its debilitating effects on public confidence and the exercise of government. The proxy warfare conducted by the parties through the adversarial separation of powers could be diminished by measures that allow more collaborative action and collective responsibility between the White House and Congress. Weakening the separation of powers should not eliminate the oversight, scrutiny and balancing capacities so essential to the constitutional system. On the other hand, allowing members of Congress to serve in the administration without giving up their seats might reduce the temptation felt by each branch to trash the other at every opportunity. Indeed, by aligning priorities and institutionalising cooperative effort, sharing of personnel could reduce the frequency of both excessive scandal-mongering and gridlock. The existing system of representation leaves legislators vulnerable to the pressure of more interest groups than the world has ever accumulated in one place. Representative government has practically become interest-group government. Constituencies will insist on keeping representatives on a tight leash but efforts to make legislators less attractive to interest groups could weaken their grip on Washington. One way to change this would be to further disperse political power by adopting national direct-democracy measures. Some proposals would require certain types of decisions to be ratified in a referendum or even allow voter initiatives and recall of members. While these measures have a mixed record in the individual states, they deserve consideration since they have not been implemented on a national level. Referenda are certainly not immune to interest group hijacking but the sheer scale of a national question would dilute efforts and raise, perhaps prohibitively, the cost of influence and success. The term limits movement, which has lost significant Republican

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support now that the Democrats no longer seem to have a deathgrip on the House, embodies some of this spirit; in a term-limited Congress, no member would be able to grow into a power-and-influence-bloated Dan Rostenkowski or Alan Cranston. Perhaps the most obvious and least revolutionary target of reform—at least to outsiders—is the campaign finance system. Unfortunately, restriction or elimination of outside advertising and contributions, or even some form of spending limits would, in the current judicial atmosphere, almost certainly run afoul of the First Amendment, not to mention Michael Huffington’s lawyers.22 It is arguable, however, that nothing could redeem Washington’s image like damming the torrent of campaign money. Even a tax on political contributions might help erase the prevalent image of politicians for hire. Modifying the basic rules of the game, in these or other ways, might be ultimately more conducive to real change than simply continuing to tack on additional prohibitions. Such an approach is essentially a renewal of the founders’ insight: the dangers of self-interest can never be eliminated but through judicious arrangement of institutions, they can be channeled toward more beneficial public ends. The alternative is the perpetuation of a system in which everyone trying to attain power in Washington does so by campaigning against Washington and all of the corruption, abuse and scandal it seems to stand for.

NOTES 1

2 3

4 5

Newt Gingrich: Speaker of the House of Representatives, 1995– (R-Ga). Soon after assumption to the Speakership, Gingrich signed a two-book contract, including advance of $4.5 million, with media baron Rupert Murdoch. Soon after the revelation and consequent outcry concerning this deal, the advance was reduced to $1, although Gingrich will still collect royalties. Gingrich pleaded guilty in December 1996 to providing false information to the House Ethics Committee (and the Internal Revenue Service) and was fined $300,000. Despite flirting with paying the fine from campaign funds (funds raised via the irregularities admitted to), he eventually decided to pay with his own money. By ‘his own’, he actually means a loan (no payments, no interest until 2008) from his new friend Robert Dole, former Senator, failed Presidential candidate and now tobacco lobbyist. Gingrich had originally derided his fellow Republican and supposed comrade as ‘tax collector for the welfare state’. Dan Rostenkowski: Former Congressman (D-I11). He was indicted in May 1994 on 17 counts of fraud, embezzlement, and misuse of public and campaign funds. Defeated in the November 1994 congressional election, he was indicted for mail fraud on two counts and served 17 months in prison. Allegations of numerous irregularities have dogged the Democratic National Committee ever since the November 1996 election. See the discussion of campaign finance below. Unbelievably abstruse and complex real-estate venture (or possibly swindle), in which Bill and Hillary Clinton invested during the 1970s and 80s. Several principals have been indicted and sent to jail as a result of investigations by special prosecutor Kenneth Starr. While this is a very basic definition, it does denote an integral aspect of the nature of political corruption (see Brooks, 1970). Checkers was a black and white cocker spaniel received as gift by Senator Richard M Nixon (R-Calif) in 1952; unapologetically beloved by Nixon family, especially little daughter Tricia. Mike Espy was Clinton’s first Secretary of Agriculture. Espy was alleged

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6 7 8 9

10

11

12

13

14

to have accepted improper hospitality, Chicago Bulls tickets and trips from several firms significantly interested in his Department, including Tyson’s Chicken and Quaker Oats. He announced resignation in October 1994 after reimbursing various individuals and entities $7,600 for various items and services received. Technically, ‘kiting’ cheques usually involves more active and fraudulent falsification of documents, but the end result is a series of cheques returned for insufficient funds. See note 1 above. While this chapter deals the federal political scene in the United States, Rosenthal, ch 2, offers a somewhat parallel examination of the state level. Clarence Thomas is an Associate Justice of the Supreme Court. His appointment to the court was confirmed by the Senate in 1991 after lengthy televised hearings in which his suitability was called into question by testimony from former assistant Anita Hill accusing him of sexual harassment. Senator Edward Kennedy Senator (D-Mass) pleaded guilty to leaving the scene of an accident and failing to promptly inform police, Chappaquiddick, MA, 1969 when the car he was driving went into the river, killing his assistant, Mary Jo Kopeckni. Kennedy is the target of numerous clichéd late-night talk-show jokes about drunken excess and unseemly lust. Senator D’Amato (R-NY) is nicknamed ‘Senator Pothole’ for his supposedly fervent patronage of local businesses. Known for his unflattering impression of OJ Simpson (criminal) trial judge Lance Ito, he is the Chair of the Select Committee investigating Whitewater. Walsh submitted the final three-volume, 2,500+ page report in 1994, representing eight years and over $30 million worth of effort. He obtained convictions of eleven officials, including Oliver North (on three counts: lying to Congress, altering or destroying National Security Council documents and accepting an illegal gratuity (a $14,000 home security system)). North’s convictions were overturned on appeal on the grounds that they had been obtained through information gained from testimony he gave to the Congress under a grant of immunity. Abscam was a ‘sting’ operation conducted by FBI from 1978 to 1980. Posing as representatives of a wealthy but fictitious Arab businessman, federal agents offered members of Congress cash payments in exchange for assorted favors, such as a private immigration bill. Seven members were caught accepting the payments (in one instance, $50,000 cash in a rumpled paper bag) on hidden camera. Rep Richard Kelly (R-Fla) jocularly asked the ‘Arabs’ if they thought that his payoff made any unsightly bulges in his suit. Jim Wright was the fiercely partisan and autocratic Speaker of the House of Representatives (D-Texas) from 1987 to 1989 and author of Reflections of a Public Man ((1984) Madison Publishing). Prevented by House Rules from accepting more than a nominal honorarium for speaking engagements, Wright magnanimously allowed sponsors to purchase large quantities of his book, on each copy of which he received an extremely generous 55% royalty. He was also noted for zeal in defending Texas savings and loan associations from federal regulatory action and cavalier reporting of gifts from friends with an interest in legislation. He resigned from the Chair and the House on 30 June 1989. In his farewell speech, Wright passionately decried the ‘mindless cannibalism’ practised by his antagonists (see Gingrich in note 4 above) and the ‘feeding frenzy’ of the media when aroused by scandal. The Keating Five were Senators Alan Cranston (D-Calif), Dennis DeConcini (D-Ariz), John Glenn (D-Ohio), John McCain (R-Ariz) and Donald Riegle (D-Mich). Recipients, in various degrees of some $1,300,000 in campaign contributions from Charles Keating, proprietor of Lincoln Savings and Loan of Irvine, CA, they interceded, individually and as a group, on several occasions with federal banking regulators investigating irregularities 79

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15

16 17

18 19

20

21 22

at Lincoln and the culpability of Keating. Keating’s savings and loan was located in California; he maintained a residence in Arizona; had other businesses in Ohio; and, as a banker, could be considered a ‘constituent’ of Senate Banking Committee Chairman Riegle (Mich). At least he thought so. Adam Clayton Powell, Jr (Rep -D-NY, 1945–70). Convicted of misappropriating public funds, he was still re-elected in 1966. Fearing for its reputation lest it be seen as a den of thieves, the House voted to deny him his seat in the new Congress. Lawsuits ensued and the Supreme Court ruled in Powell’s favour, emphasising that the Constitution allows only three qualifications (minimum age, citizenship and residency in the constituency) to determine eligibility for membership in Congress. See note 13 above. See Potts (1998) for a short history of the codification of ethics in the US legislature. Hayden, ch 4, attacks such over-regulation as leading to narrow-minded politics and politicians. The US House of Representatives Code of Official Conduct (105th Congress) may be found in Appendix 1. See note 13 above. On 28 July 1995, the Senate passed a new rule which places a value limit on gifts which senators may accept. As of 1 January 1996, senators, their families and their staff are prohibited from accepting gifts valued at more than $50 and may not accept more than $100 in total from any single source. The rules still permit ‘food, refreshments and entertainment at widely attended events related to their official duties’. While this new rule helps to tighten existing loopholes in the area of hospitality, it still does not close them. The rule has not been adopted in the House. Calls for an Independent Counsel investigation of the White House’s role in this scandal were loud and strident but ultimately Attorney-General Janet Reno refused to appoint one, citing a lack of concrete evidence of wrongdoing by officials covered by the statute on campaign fund raising. Senator Fred Thompson’s Select Committee to investigate the scandal, formed to great fanfare in 1997, quickly degenerated into partisan posturing and potential embarrassment for both parties as habitual irregularities were admitted or implied and the whole scandal eventually faded from the headlines. Early in 1998, a principal figure, fund-raiser and Clinton campaign worker Charlie Trio, resurfaced after having fled abroad and surrendered to authorities who had sought him for questioning and possible charges in connection with this earlier affair. Foster killed himself on 20 July 1993. Michael Huffington is a Former Representative (R-Calif) and Senatorial candidate (1994) in California. He spent the Senate campaign record of $27 million (all but $400,000 selffinanced) in 1994; he had also spent a House campaign record $5 million in 1992. Incumbent opponent Diane Feinstein (D-Calif) spent $12 million ($1.5 million self-financed) in response. Huffington refused for several months to concede defeat in the election and continued to allege widespread, co-ordinated, systematic voter fraud as the reason for his apparent ‘loss’ to Feinstein.

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6 ETHICS COUNSELLOR TO THE GOVERNMENT The Canadian Experience

Howard R Wilson

INTRODUCTION* In June 1994, the Prime Minister of Canada created the position of Ethics Counsellor, incorporating some existing functions related to conflict of interest guidelines and lobbyists registration into a substantially expanded, more visible office. Why did the Prime Minister feel the need to do this? Didn’t he thereby constrain his freedom to act on his political agenda? What does the Ethics Counsellor actually do? How effective are the Counsellor’s actions? To whom is the Counsellor really accountable? These issues will be discussed from the practitioner’s point of view, without attempting to develop theoretical models or provide full historical detail.

WHY BOTHER WITH ETHICS? As in many other parts of the world, Canadian governments at every level face a cynical electorate. In a recent poll, politicians consistently rated low in public esteem, even below lawyers and journalists (Greenspon, 1996, p A3). (Rosenthal, Chapter 2, Hayden, Chapter 4 and Burgmann, Chapter 9, all emphasise this trend in the United States and Australia, respectively). Interestingly, this cynicism is not due to a particularly high level of political corruption in Canada. There have been some scandals, to be sure, as well as a certain degree of spillover effects from prominent scandals in the United States and elsewhere.1 However, the cynicism in Canada is also fed from a number of other sources. One factor contributing to this attitude is the public’s rising expectations of those in government. A generation ago, people who heard that a prominent Canadian minister reviewed his personal investments weekly in the light of his special knowledge of 81

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events did not raise criticisms because they were confident that this honourable gentleman would never make decisions in his public capacity that were not in fact in the public interest. That level of trust in honour has disappeared. The public now needs visible reassurance that right is being done and that public officials are avoiding even the appearance of conflict of interest. These rising expectations seem to have come out of the dramatic growth in the complexity and pervasiveness of government in past decades and the increasing interest of society generally in public affairs. On balance, these higher expectations are strongly encouraging as they serve to strengthen Canadian democratic institutions (see Rosenthal, Chapter 2, and Hayden, Chapter 4, for differing assessments of the change in public expectation). Intense media scrutiny has also played a role in increasing public cynicism to some extent. Active media are of course essential to democracy and an important part of the overall scheme to protect the public interest. But with prolonged exposure to stories of possible and actual wrongdoing, the public comes to expect the worst from politicians in general. Escape from this vicious circle is an important part of the challenge that faces government (Rosenthal, Chapter 2, provides a far more critical view of the media’s role in public awareness of legislative ethics. Tanner, Chapter 7, examines the role of the media in detail). Turning to Ottawa in 1994, the timing was right for action. The Prime Minister, Jean Chrétien, was beginning a new mandate and wanted to underline his long-standing personal commitment to ethical government. He also wanted publicly to require his Cabinet, and the government as a whole, to maintain the highest ethical standards.2 At the same time as appointing the Ethics Counsellor, the Prime Minister issued a clarified and strengthened Conflict of Interest Code (Office of the Ethics Counsellor, 1994b) for public office holders and tabled a bill in the House of Commons to strengthen the Lobbyists Registration Act.3 The overall goal was to ‘help promote public trust in national institutions’ (Office of the Prime Minister, 1994).

Ethics on the International and Business Front These actions have both an international and a business context. Public sector ethics faces some stark issues in other countries. While the corrosive cycle of corruption, public cynicism and possible loss of good candidates for public office is readily apparent in some parts of the developing world and the emerging democracies of eastern Europe, mature democracies have not been immune from this plight either. Without overdramatising, it can be said that this state of affairs is a threat to democratic institutions, a threat that must be addressed by responsible governments everywhere, whether to correct existing abuses or to forestall future problems. In fact, most Canadian provinces and territories have taken actions analogous to those taken in Ottawa (Office of the Ethics Counsellor, 1994a). Multilateral agencies from the UN to the Organization of American States, from the OECD to the World Bank, are also taking steps to combat corruption. These initiatives generally include both a criminal aspect (catching crooks) as well as an

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ethical aspect (encouraging better behaviour). The overall goal is to help reduce the staggering costs of corruption around the world. Corruption is now recognised as diverting billions of dollars from legitimate spending, discouraging long-term investment and ultimately causing great damage to the legitimacy of democratic institutions as trust in authority diminishes. Canada supports these international initiatives. In turn, serious and sustained work on ethics abroad is a motor for positive change in Canada. The business community is an important but often overlooked part of the picture. Loss of international sales has been touted as one cost of doing business ethically but the actual long-term cost to corporations when they tolerate corrupt practices is very high indeed. It is becoming recognised in Canada, as elsewhere, that ethical corporate behaviour can strengthen a firm’s productive relationships with its customers, suppliers and employees. This is more than merely pursuing ethics to look good to shareholders, government or staff. This hits at the all-important bottom line. To summarise the emerging consensus: sound democratic institutions, free market economies and ethical public and private sectors all support and reinforce each other.

WHAT DOES THE ETHICS COUNSELLOR DO? The Ethics Counsellor’s principal responsibility is to administer the Conflict of Interest Code (Office of the Ethics Counsellor, 1994b). This code is not a piece of law but has been issued by the Prime Minister, with observance being a condition of appointment to certain government offices. It applies to cabinet ministers, their parliamentary secretaries and political staff, as well as government appointees to senior positions in federal organisations (including deputy ministers and the permanent heads of departments).4 The focus here will be on ministers, who in the Westminster parliamentary system are at the same time members of the legislature and the executive. Ministers in a thriving democracy face numerous major challenges. Their behaviour is subject to various tests that can affect their tenure, three of which stand out for the purposes of this discussion. The first relates to their competence. Ministers are sometimes appointed to positions which they are not able to fill adequately. Prime ministers deal with this by giving them assignments they can handle or simply by removing them from cabinet. This is not unusual or uncommon and raises no ethical concerns. The second test deals with criminal behaviour. Most countries have had the unfortunate experience, from time to time, of having a crook in office. Most democracies have in place, or are in the process of creating, judicial measures enforced by police to deal with this situation. Some politicians may then be charged with criminal offences in the areas of bribery, extortion, embezzlement, fraud, influence peddling and the like. Canada has happily had few such cases, and not through oversight, because a solid judicial system for enforcing the Criminal Code is in place (Criminal Code RSC Chapter C-46). The third test is much less clear-cut than the first two. It concerns conflicts of interest, when a minister is accused of taking decisions to further personal interests.

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This might involve advantages for a company the minister owns or for relatives in business. Conflict of interest, particularly the appearance of conflict, is not a black or white issue, as is criminal activity. Nevertheless, the public trust is damaged by allegations of conflict, more so when there may already be considerable public mistrust as to the real motivation of politicians. Ministers are in an exposed position when possible conflicts of interest are raised. Confronted with an allegation by the parliamentary opposition or the media, they are likely to respond forcefully, ‘No, I am acting in the public interest and I am not in a conflict’. The accuser may then press further. ‘With all due respect, I think you are in a conflict.’ It becomes very difficult to resolve such an accusation, which can damage a political career, the reputation of the government and even the latter’s capacity to carry out its legitimate goals. The Canadian approach to this problem has been to establish a highly pro-active system to prevent conflicts from occurring in the first place. The essential features of the system are the Conflict of Interest Code, the Office of the Ethics Counsellor and the full support of the Prime Minister in the implementation of the rules. Codes come in two major varieties. In some jurisdictions, there are very detailed rules, setting out as many situations as possible that a minister might experience. Establishing detailed rules, the so-called compliance-based approach, implies that those in public office do not themselves have the judgement to take the right decision. Elaborate rule systems also invite those who must obey them to search for loopholes instead. This approach would not appear to be the best way to restore and maintain public confidence in the integrity of government.5 The Canadian code follows the second course: the integrity-based approach. This approach tries to minimise formal rules, preferring to start with a concise set of positive principles to inspire and guide ethical behaviour.6 The principles are typically reinforced by appointing an advisor to help apply them to the dilemmas that arise on the job. The Canadian code starts with ten principles that set the standard for those in public office. Four are particularly relevant here.

Principles of the Code and its Contents The first principle is that public office holders, namely ministers and senior government appointees, shall act with honesty and uphold the highest ethical standards so that public confidence and trust in the integrity, objectivity and impartiality of government are conserved and enhanced. The next principle moves that idea further by stating that public office holders have an obligation to perform their official duties and arrange their private affairs in a manner that will bear the closest public scrutiny, an obligation that is not fully discharged by simply acting within the law. This requirement, that compliance with the law is not enough, is crucial to the code’s whole approach. The third principle adds the main test that goes beyond the requirements of law. In fulfilling their official duties and responsibilities, public office holders shall make decisions in the public interest and with regard to the merits of each case.

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Another principle brings us back to conflict of interest. Public office holders shall arrange their private affairs in a manner that will prevent real, potential or apparent conflicts of interest from arising; any conflict that does arise shall be resolved in favour of the public interest. Taking off from this principle, the code goes on to set out a process to prevent conflicts from arising. Prevention, also known as avoidance, is particularly important for those who come to public office from an active life in the private sector. Governments cannot govern effectively if ministers are continually having to worry about whether they must absent themselves from policy discussions because they have a private interest in the matter at hand. Ministers in such circumstances will not be able to make the contribution to government that led them to seek election in the first place (Rosenthal, Chapter 2, ‘Consequences of being governed by appearance’, notes the drawbacks to recusal). The process to prevent conflicts of interest in Canada works as follows. 7 Ministers must make detailed disclosures to the Ethics Counsellor of all of their assets, liabilities, outside activities and gifts received. They must also ensure that the same information is provided for their spouses and dependent children. These disclosures are, it must be admitted, very intrusive. Canadians are not used to having an outsider delve into their private affairs to this extent, although the process is confidential. As spouses and dependants do not hold public office, their disclosures are only used to advise the office holders on the measures they must take to avoid conflicts. The code then sets out what kind of assets can continue to be managed by the minister. Personal effects and most mutual funds are not affected. However, dealing directly with publicly traded shares in companies is prohibited, whether the shares may be affected by decisions taken in the minister’s portfolio or not. This is because it might still be possible for ministers to influence the value of shares or benefit from insider information as a result of their cabinet responsibilities. Such shares must be sold or placed into a blind trust, thus managed at arm’s length. Interests in private companies having dealings with the government must also be managed blindly from the minister. The code also states that a minister may not practise a profession, be involved in outside business activities or act as a consultant. Being a minister is a full-time occupation. This of course reduces potential conflicts as well.8 Finally, the code provides for public declarations concerning just those private interests that can be retained because they involve a minimal risk of conflict. Examples would be ownership of rental properties and positions of office in charitable organisations.

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The Counsellor’s Functions The Ethics Counsellor thus has two sorts of functions arising from the code: to advise ministers and other public office holders on the application of the code’s ten principles and on resolving ethical issues in general, as well as to administer the specific rules for disclosure and the compliance measures to avoid conflicts of interest. In addition, the Ethics Counsellor is available to the Prime Minister to examine allegations of impropriety by members of the government. What all this achieves is protection of the public interest in eliminating possible sources of conflicts as well as that of public office holders from unfair allegations. The Ethics Counsellor has been able to provide explanations in numerous cases which meet public concern about a minister. Good potential candidates for public office need not be frightened away by the possibility of unjust accusations against them once they are in office, by requirements to make full public disclosure of the value of all their assets or by being unable to maintain an investment portfolio (Rosenthal, Chapter 2, for examples of the difficulties such requirements pose). An important point to consider is that this scheme for ministers is different from that for public servants and from that being considered for parliamentarians who are not in cabinet. The pro-active, preventive treatment for ministers is appropriate for those who make the many decisions of government that affect the lives of the populace. Public servants are bound by the same principles as ministers but, having less authority, need not take the full range of preventive measures.9 Members of the Senate and the House of Commons are currently studying a possible code of conduct for themselves. A consensus is emerging that the legislature as a whole does not need rules that are as strict as those for the ministry. Parliamentarians outside the government do not make the sort of day-to-day decisions that require extensive divestment and withdrawal to avoid possible conflicts of interest (Wilson, 1995, p 16). In most of the provincial legislatures in Canada, members make public declarations of their holdings, without precise figures. These are based on disclosures made to an ethics commissioner reporting to the legislature. Members then withdraw from deliberations where their interests are directly affected. This process, combined with rules on such matters as contracts with the government, is proving to be a suitable way to protect the public interest. (This is similar to the system in New Zealand (see Hicks, Chapter 8). See Rosenthal, Chapter 2, on the demerits of recusal.) To complete the portrait of the Ethics Counsellor, it is to be noted that the Counsellor also has a role under the Lobbyists Registration Act. Lobbyists, that is, individuals paid to attempt to influence federal government decisions, must disclose their activities and clients publicly.10 In addition, the act required the Ethics Counsellor to develop a code of conduct for lobbyists. The code, which became effective in March 1997, uses the integrity-based approach, setting out the government’s expectations of those who are engaged as lobbyists. It focuses on ensuring that any information provided is accurate, that confidentiality is maintained and that conflicts of interest are avoided. The Ethics Counsellor is required to investigate alleged breaches to this code and prepare a report for Parliament on the findings.11

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TO WHOM IS THE ETHICS COUNSELLOR ACCOUNTABLE? Accountability is basically a simple concept that has on occasion been made rather confusing. It is a long-established convention of the Westminster system that cabinet ministers are responsible to parliament for the actions of their departments. Attempts have been made to make senior public servants responsible for departmental actions, citing the complexity of government and the impossibility of having the minister involved in every decision. These arguments do not change the basic accountability of ministers for the actions of their departments. Of course, not every mistake made by staff is reason for the minister to resign. The minister must make every effort to keep informed of departmental activities and establish appropriate controls on them. When mistakes come to light, ministers must act to correct them. It is the dereliction of these ministerial duties or unethical behaviour by ministers that raises (or should raise) the issue of resignation. As an extension of this convention, it is ultimately the prime minister who is responsible for the performance of the government, including its ethical behaviour. The prime minister appoints and removes ministers from cabinet. It is, therefore, the prime minister who must stand accountable and provide ethical leadership to government as a whole. For these reasons, the Ethics Counsellor has in turn been made responsible to the Prime Minister. In other jurisdictions, where officials responsible for cabinet ethics have an independent status and report to the legislature, the authority of the leader of the government is diluted. While this may seem to give the official some added public credibility, it also reduces the strength of the ultimate accountability of the government leader to the legislature and the people. On a practical level, independent ethics officials, particularly those with formal powers of investigation, become less useful as advisors to ministers on ethical questions. The Canadian Ethics Counsellor is frequently approached early in the emergence of a difficult matter and advises on its resolution. In some jurisdictions, officials whose duties include investigating possible breaches of the rules and reporting on them to the legislature seem to have less interaction with ministers, with the danger that dayto-day ethical issues may receive less expert attention than they deserve.12

HOW WELL DOES ALL THIS WORK? It would be presumptuous for a practitioner to answer this question with finality. However, some concrete achievements can be set out. Hundreds of Canadian ministers and other public office holders have gone through the discipline of reporting their assets and activities to the Ethics Counsellor for analysis and follow-up action, including public disclosure. These individuals have also received advice on other matters related to the principles of the Conflict of Interest Code and government ethics in general. Many questionable actions have been avoided because the Ethics Counsellor said ‘No’. A positive sign is that some individuals have realised that they should not do something during the process of presenting their case to the Ethics Counsellor. And countless others have 87

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avoided dubious actions that were never presented to the Ethics Counsellor because they now know the rules.13 The Ethics Counsellor has also said ‘Yes’ on many occasions and has defended the actions of ministers when they were challenged by the media. The best way to do this has shown itself to involve giving out considerable amounts of information, explaining the rules, the case and the basis of the judgements. This may not be the usual reflex but serves to inform all concerned about the ethics of governing. This approach has also been effective in responses to political attacks on ministers where irrelevant ethical issues were being contused with legitimate policy disagreements. (This is in direct contrast to the scenario portrayed by Rosenthal, Chapter 2, with ministers at the mercy of the press.) The opening question whether the creation of this ethics machinery has constrained the Prime Minister’s freedom to act on his political agenda can now be answered in the negative. Given public views about integrity in political life, the Prime Minister, had to act to sustain public trust in Canadian public institutions. His actions are helping to ensure ethical conduct in government, providing reassurance for the public as well as protection for public officials. The process, moreover, leaves ultimate accountability with him. (The importance of ethical leadership is examined in Hayden, Chapter 4.)

WHERE DO WE GO FROM HERE? Concern with ethics in both the public and the private sectors will continue and increase around the world. The global challenge is to inspire people to be ethical and make morally sound judgements because they believe it is right. To this end, initiatives will go beyond the criminal law to include supporting codes, ethics officials, administrative sanctions, training programs and communications programs that include information on best practices (Kernaghan, 1996). Education is particularly important and ethical decision-making must be integrated into training for executives, as well as for line managers and staff in general. Such education assumes particular importance when authority is decentralised. There is much to be learned from the experience of private sector businesses in these areas. (Lawton (1998) emphasises that such cross-fertilisation of business practice and ethics must be undertaken with care.) Ingenuity will be required to design rules and systems that provide a ‘cure’ without engaging in overkill. Built on two decades of experience, the approach of the Canadian federal government sets out one way to proceed: integrity-based codes, pro-active ethics officials, accountability appropriate to the clientele, openness to the media and leadership from the top. A recent development has been for ethics to be linked closely with the need to set out government values.14 A particular challenge is the development of ethics rules for agencies that are being privatised and for new agencies that are being set up in partnership with other bodies outside the federal government. Both the privatisation

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process and partnerships with the private sector contain numerous sorts of situations where the appearances of conflict may arise. From the practitioner’s point of view, be they an internal ethics counsellor, an ethics committee or external ethics consultant, the goal of the whole exercise is to try to provide assurances that those in public life meet a high standard of ethical conduct, thus engendering public trust in both the individuals and the institutions.

NOTES * 1

2 3 4 5

6 7

8 9

10 11 12 13 14

This chapter has been prepared with Cornelius von Baeyer, ethics consultant, formerly of the Office of the Ethics Counsellor, Ottawa, Canada. A number of cases are detailed in Greene and Shugarman (1997). Rosenthal, ch 2, ‘Consequences of being governed by appearances’, notes the prevalence of mistrust in relatively scandal-free states in the United States as well. This order of events (election followed by institution of ethics infrastructure) is at odds with that examined in Kim (1998). Lobbyists Registration Act RSC Chapter 44 (4th Supp) as amended, SC 1995, c 12. This discrete application of code only to senior officials is not unlike the Ministerial Code in Australia under the current Howard Government. See Hay den, ch 4. Hayden, ch 4, notes that such rigid codes actually imply a lack of trust. Further, they tend to attract ‘small-minded’ politicians. Cf Burgmann, ch 9, for a more positive view of compliance-based codes. Burgmann, ch 9, criticises such aspirational codes as unenforceable and unacceptable to the public, given their lack of trust in the integrity of public office holders. This process parallels that found elsewhere. See, for example, Rosenthal, ch 2, on the United States; Hicks, ch 8, on New Zealand; and Burgmann, ch 9, and Kernot, ch 10, on Australia. The merits of the citizen vs full-time legislator (minister here) are debated in Rosenthal, ch 2, ‘Consequences of being governed by appearance’. Hayden, ch 4, argues against different standards for different roles, while Hicks, ch 8, ‘Issues’, supports the approach. Smith, ch 3, reveals the ethical games public servants can play with legislators and ministers. This is in marked contrast to the US and Australian situation. See Rosenthal, ch 2, and Hayden, ch 4, respectively. Documents and data on lobbying issued by the Office of the Ethics Counsellor can be accessed at http://strategis.ic.gc.ca/sc_mrksv/engdoc/homepage.html. Smith, ch 3, highlights the problem of ‘outsiders’ making assessments of legislative ethics, with their unfamiliarity with the daily realities of legislative life. This flags the important educational element of an ethical code/counsellor, a point noted in more detail by Burgmann, ch 9. A Strong Foundation: The Report of the Study Team on Public Service Values and Ethics (1996) Canadian Centre for Management Development, Ottawa, Canada

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7 WATCHDOG OR ATTACK DOG? The Media, Politics and Ethics

Stephen Tanner

INTRODUCTION The media are increasingly feeding the public a diet of news which highlights socalled ‘ethical breaches’ by public figures, particularly politicians. For example, during the late 1980s and early 1990s, Australian political standards were subjected to microscopic scrutiny as the activities of leading political figures in a number of states were investigated by royal commissions and other quasi-judicial inquiries.1 The reports generally forthcoming from such inquiries frequently paint a bleak picture of elected public officials who use public office for their own or party-political purposes. In some cases, inquiries can result in high-profile political figures being jailed or even being forced from office. Those touched by the inquiries but who remain in office generally have their reputations besmirched. There is a vast literature which documents scandals in a number of liberal democratic countries. For example, British politics has been scandalised by allegations of MPs who have been paid by lobbyists to ask questions of ministers in the House of Commons.2 It has also had to deal with the so-called Guardian-Aitken affair. This involved allegations that Jonathan Aitken, a defence procurement minister in the early 1990s, was involved in illegal arms deals with the Arabs. These charges, which were never proved, led to Aitken bringing a defamation action against the Guardian (later dropped midway through the hearing) and resulted in sordid details about his sex life being aired by the British tabloids (for a discussion of this case, see The Spectator, 1997, pp 11–13, 25, 28, 30). In the United States, recent incidents have included the House Bank scandal and also allegations that some legislators were being paid to undertake speaking engagements.3 Much of the focus of US and UK scandals (as opposed to those in Australia) has been on the sexual peccadilloes of legislators. In 90

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the UK, the former conservative government of John Major was wracked by scandal after scandal in its last months, with members being forced to admit to marital infidelity and other morally questionable practices. Such scandals will always hurt a government, especially when it has published a family values policy which appeared to condemn such behaviour, as was the case with John Major’s government. The impact, potential and actual, of such scandals is highlighted by a number of US cases. Gary Hart’s presidential aspirations in 1987 ended when his relationship with Donna Hart was publicised by the media. The potential damage that such a scandal can wreak is highlighted by the unsuccessful attempts of current US President Bill Clinton to delay his pending court case with Paula Jones until after he leaves the White House at the end of his presidency.4 In Australia, there have recently been a series of allegations against legislators involving the misuse and over-claiming of travel entitlements5 and the giving of false evidence to a royal commission.6 It is little wonder public opinion polls are revealing that the public has little faith in their politicians and that they regard them as being self-interested and, in some cases, corrupt.7 One revealing Australian poll sought to find out why voters were disenchanted with their political representatives. The result was an indictment. on politicians, with 91% agreeing with the statement that federal MPs twisted the truth to suit their own arguments, 79% agreeing that federal MPs could not be trusted to keep election promises and 67% disagreeing with the statement that federal politicians usually tell the truth (Walsh and Richardson, 1995, pp 14–17).8 To understand public attitudes towards politicians, it is necessary to look at the role of the media.9 Traditionally, the media has been ascribed an important role within liberal democracies. It is a watchdog function which has seen the media hailed (and even trumpets itself) as ‘the fourth estate’. For the majority of people, the media provides them with a window to the world outside of their immediate purview. That is, they rely on the media to keep them informed about what is happening and where; who is doing what and why. It is an integral role in the liberal democratic system of representative and accountable government. The media can be considered the link between the politician and their constituents. Without the media, the overwhelming proportion of people would remain relatively ignorant of events, even of those occurring not too far away from them in a geographic sense but nonetheless impacting on their democratic rights and responsibilities. This role carries with it enormous obligations, both to the ultimate recipients of the news and those who are subjects of media coverage. The media is expected to be responsible, objective and fair when covering or reporting on news events. This is not an easy task, because it involves often competing responsibilities. On the one hand, the media has to weigh its obligation to inform people about events, so they can form their views about issues and, if necessary, act.10 That is the media’s public interest function. But on the other hand, the media has an obligation to those people who are being reported upon. This involves respecting their rights as citizens. Frequently, the media struggles to balance these obligations, particularly when it comes to respecting the rights public figures are supposed to enjoy as a private individual.11 The significance of the media’s various obligations is highlighted by research which shows that not only does the media play an important role in bringing news to the 91

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people but, more significantly, it can influence how people interpret and respond to issues.12 This is the so-called agenda-setting theory of the media. Its thrust is well described by Cohen, who said that the media ‘may not be successful much of the time in telling people what to think, but it is stunningly successful in telling its readers [and viewers and listeners] what to think about’ (cited in Iyengar and Kinder, 1987; see also Ward, 1995). Whilst the agenda-setting approach is not without its critics, it does enjoy considerable support amongst academics and appears to be acknowledged by the actions of politicians and their media advisors. This chapter aims to put these issues in perspective, balancing off the theory with the practice. It is not a clear case of white hats and black hats here; as the chapter title implies, the role of the media in assessing, critiquing and influencing political ethics can be both positive and, to some minds, negative. Following a broad discussion on various aspects of the media-politics relationship in the nebulous world of ethics, this chapter will then utilise the specific case of the 1992 Metherell affair in Australia to demonstrate the ambiguities that exist in the role of the media, the notion of political or legislative ethics and the interface between the two.

THE ROLE OF THE MEDIA: CURRENT FACT AND HISTORICAL FICTION Despite vesting the media with such responsibilities, opinion polls suggest that the public’s regard for journalists is no higher than its attitude towards the politicians we expect them to hold accountable.13 In the poll cited above, newspaper journalists received an ethics and honesty ranking of just 8%, below both state and federal legislators, and above only that of car salespeople (3%) (Morgan Gallup Poll, nd).14 Television reporters fared marginally better (13%), placing them one rung above state legislators in the ethics and honesty race, although their rating had fallen from 16% in just 12 months, a solid indication of viewer dissatisfaction. On the other hand, newspaper reporters could perhaps gain some solace from the finding that their rating had stayed static, albeit very low, for almost three years. A separate poll from mid-1996 revealed more specific attitudes toward the media (Murphy, 1996, pp 14–17). According to the survey, 85% of Australians regard the media as too sensational, 80% believe it is uncaring when dealing with issues like privacy and grief and 72% consider the media too inaccurate and likely to provide information which was misleading. More than 50% believed that the media is too critical of people and institutions which were trying to serve Australia, with 53% agreeing that the media provided too little focus on subjects most Australians cared about. When asked about the performance of journalists and media commentators, the respondents were particularly scathing. Only 16% believed they did a good job in behaving in a trustworthy manner in obtaining and presenting stories15 while 19% felt they did a good job at preparing reports which were fair, accurate and free of bias.16 Just 13% were prepared to adjudge as good their willingness to accept criticism and to acknowledge or correct mistakes.17

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The results of these polls are of concern to both politicians and journalists. One can really only speculate on the reason that increasingly negative attitude has developed, although it is tempting to suggest a number of possible causes. These include changes occurring within the media and a changing relationship between politicians and the media. Of particular significance has been the move of television into news and current affairs. Whereas newspapers were traditionally the primary provider of news and the electronic media providers of entertainment, there has been a realignment of functions in recent decades. The electronic media is now regarded as the primary news provider for many people in the developed world. To help staunch the fall-off in circulation which has resulted from this, newspapers have been forced to reassess their roles. No longer are they simply journals of record; today, journalists have greater flexibility to comment on issues. Coverage of major issues often involves the inclusion of opinion pieces by senior journalists, along with columns from specialist commentators. In part, this reflects the trend which has seen news and entertainment combined. The result is ‘infotainment’, a product in which the line between ‘news’ and ‘views’ has become more hazy and less readily defined.18 This appears to have even permeated the ‘responsible’ press as well; in so doing, the differences between such press and the tabloids has decreased, substantially in some cases. This appears to have been at a cost, however, with one of the main journalistic tenets—objectivity—having been diminished in the public perception as a consequence. There is another element to this shift which cannot be underestimated: the pressures under which journalists (and media organisations) operate. Consumer demands, coupled with technological advances, have meant that media organisations, and hence the people who work for them, now produce their programs or publications more frequently than had been the case in the past. Radio stations produce news bulletins on the hour, often more frequently early in the morning and during drive time. Television stations produce a number of news and current affairs programs throughout the day, beginning with early morning programs. Most newspapers publish on a daily basis, often with a number of editions or replated to cater for particular circulation areas. This places the journalists under enormous pressure to produce stories. Perhaps this pressure helps to explain why in recent years there appears to have been an increased focus on conflict as a topic in the media. Conflict is much easier to distil down to manageable sound bites (for radio and television), pictures (television and newspapers) and to build up for catchy headlines (for newspapers) than a wellreasoned analysis of a country’s current economic woes or an assessment of a particular piece of legislation. Often these latter type of stories are overlooked (or edited down to a point whereby they lose their meaning) and are replaced by other less significant but more colourful stories. Also, conflict almost invariably involves personalities and, as the changing content of newspapers in particular shows, media consumers are interested in the lives of public figures. This has been highlighted in the UK where, in recent years, the tabloid newspapers in particular have focused not only on the idiosyncrasies of the Royals but also on the behaviour of other public figures, especially MPs. This is the entertainment side of the infotainment equation showing through, with the worrying trait of starting to dominate news delivery. 93

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In the UK, this focus has also manifested itself in another way. A study conducted by a British MP, Jack Straw, currently Home Secretary, shows that the British print media is no longer devoting space to coverage of Parliament as a matter of course (cited in Franklin, 1996, p 298). He found that major newspapers like the Times had abandoned their dedicated parliamentary pages (Franklin, 1996, p 298). Instead of providing parliamentary news as a public service, they now apply normal tests of newsworthiness to stories which in the not too distant past would have been published simply because they were sourced from Parliament. Building on Straw’s survey, Franklin has argued that ‘the tradition of gallery reporting has been supplanted by stories inspired by the lobby’ (Franklin, 1996, p 299). This is reinforced by other research which suggests that the traditional view of journalists as ‘hunters’ of news has been replaced by a view which regards them as ‘gatherers’. This is the view of researchers like Tuchman (1978), Fishman (1980), Tiffen (1989) and Ward (1991). According to this view, story ideas are frequently generated by people other than the journalists themselves. Ideas might come from politicians, their advisors or public relations practitioners. A study conducted by Ward showed that 25% of stories published by a group of Queensland newspapers in a oneweek period were initiated by media releases from legislators rather than by journalists acting on their own initiative (Ward, 1991). Significantly, the study found that the journalists did not acknowledge the origin of the story idea, preferring to maintain the impression that they had generated the story themselves. This was achieved through the use of language such as ‘X said yesterday…’, which gives the impression that the minister was talking to the journalist, rather than saying ‘the office of X issued a news statement…’, an approach which would give a more accurate picture of the journalist’s efforts in sourcing the story (Ward, 1991, p 57). This raises another related issue. Journalists, and the organisations for which they work, do not like to be scooped. However, rather than spurring journalists on to greater individual effort, this has contributed to the emergence of a pack-like mentality amongst journalists. Instead of working independently, journalists tend to work together on stories. One downside of this approach is a sameness in the diet of news consumers are fed, even by competing organisations. Further, in trying to avoid being scooped, journalists can be vulnerable to manipulation by politicians and their advisors. That is, they can be susceptible to information fed to them by politicians or their advisors. This might take the form of leaks or off-the-record briefings. It can also take the form of preferential treatment whereby journalists who are known to be sympathetic to a particular politician or political party are given information. However this information often comes at a cost to the journalist’s own professional integrity; it is provided to the journalist with the expectation that it will be presented in a particular light. Clearly journalists don’t like this type of government/politician-media relationship, not the least because it undermines the self-image the media seeks to promote as a watchdog.

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THE MEDIA AND POLITICS: A VARIABLE RELATIONSHIP Despite the obvious tensions, the relationship between the media and politicians is a dynamic one. It has frequently been described as ‘symbiotic’ and certainly the relationship is two-way. They rely upon each other. The media would find its job almost impossible if it did not have access to the informational resources provided by the politicians and institutions of government. Equally, politicians depend on the media to publicise their achievements, their concerns and their criticisms of each other. Without the media, publicity would be prohibitively difficult and expensive. Yet despite this, the relationship is not always marked by trust. In fact, there have been a number of occasions in recent years on which politicians have confessed to lying to journalists rather than honestly answering the questions put to them because they did not suit the individual’s political purposes at that time.19 Unfortunately, these admissions have only reinforced the rising sense of cynicism and frustration being felt by journalists towards politicians. The question is: has this increasing cynicism and frustration on the part of journalists and the lack of trust on the part of journalists and politicians alike forced changes to the relationship between them in any meaningful way? In 1991, Larry Sabato argued that the relationship between the US media and the president of the United States had gone through three stages (Sabato, 1991). The first, which extended from 1941 to 1966, he called ‘lapdog’ journalism. During this period, journalists were believed to hold the presidency in such high regard that they would not publish anything which was seen to impugn or reflect upon either the office or the incumbent, even if they were aware of particular indiscretions (Sabato, 1991, p 25). The second, which lasted from 1966 until 1974, was called the ‘watchdog’ period (Sabato, 1991, p 26). Instead of protecting the president, journalists began to question his actions if they believed they were unethical, improper or inappropriate. The last period Sabato labelled ‘junkyard-dog’ journalism. This began in the mid-1970s and continues through to the present. According to Sabato, this form of reporting can be ‘harsh, aggressive and intrusive, where feeding frenzies flourish and gossip reaches print’ (Sabato, 1991, p27). According to the principles of junkyard-dog journalism, people who wish to offer themselves for public office in effect abrogate any right to privacy they might otherwise have enjoyed. This form of journalism has been displayed in recent US presidential elections which have seen a number of candidates forced to drop out because of adverse publicity about their private lives.20

Legal constraints To date there appears to be little evidence of the junkyard-dog style of journalism in Australia or, for that matter, other countries which embrace the principle of a free and vigorous media.21 Australian journalists have focused less on the private lives of politicians than their US counterparts. Much the same can be said of the British media, despite the prurient interest the British tabloids have shown in the private lives of politicians and other public figures since the late 1980s. One reason for this would appear to be the much tougher defamation laws that exist in these countries. Since the 95

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landmark 1964 decision in New York Times Co v Sullivan 376 US 254 (1964), US journalists and media organisations have enjoyed a certain protection against defamation actions by ‘public figures’. Under the Sullivan principle, public figures must demonstrate that the defendant acted with malice. That is, they either knew the statement was false or they recklessly disregarded the truth (Weaver and Bennett, 1993, p 2). According to Weaver and Bennett, the US Supreme Court adopted this standard because of a ‘commitment to the principle that debate on public issues should be uninhibited, robust and wide open’ (376 US 254 (1964) at 271, cited in Weaver and Bennett (1993) p 3). They also said the Court recognised that, while this debate may involve ‘vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials’, freedom of discussion was integral to the political process (Weaver and Bennett (1993) p 3). Australian and British journalists and media organisations do not have the protection of the Sullivan ruling. In Australia and Britain, the maxim ‘you publish at your peril’ is etched in the minds of journalists and publishers alike. Few are prepared to risk profits by openly inviting legal action by an ‘aggrieved’ public figure.22 In Britain, plaintiffs are only required to establish that the journalist or media organisation made defamatory statements that referred to them or that reasonable people would accept referred to them (Weaver and Bennett (1993) p 3). Australian defamation law is based on the English system, although it is slightly more complex, given that it is considered a state rather than federal matter.23 This has meant that the standard of proof varies from state to state. Although according to Grabosky and Wilson, [i]n Australia generally, a statement is defamatory if it tends to injure a person’s reputation, or to make that person an object of hatred, contempt, or ridicule. No proof of actual injury to reputation is required in order for a defamation action to succeed. (Grabosky and Wilson, 1989, p 80)

There is little doubt that Australia’s and Britain’s defamation laws do provide a disincentive to journalists and media organisations seeking to report on ethical breaches or allegations thereof involving public figures. This may also help explain why there is not as strong a tradition of investigative reporting in Australia and Britain as in the United States.

A CASE OF GIVE AND TAKE Even so, there are some avenues open to enterprising journalists in these regions keen to pursue particular types of stories. One is to enlist the aid of legislators who are prepared to raise allegations in a legislature. This approach works to the media’s advantage, but not solely, on a number of levels. The legislator who makes the allegations is protected by parliamentary privilege. So too are the media organisations that report the allegations. In addition, if the allegations involve another legislator, that person is then obliged to respond. This not only works to the advantage of the media but it also gives the public the opportunity to assess the merits of the various 96

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allegations and explanations. Despite enjoying the protection of parliamentary privilege, the media is nonetheless still bound by the principles of fairness. Allegations can be portrayed as often irrefutable; if presented in such a light, the accused often struggles to convince the media (and hence the public) that there is little substance to the claims. An additional advantage to the media in having allegations raised in a legislature is that once they are aired (whether by the media’s instigation or not), it is much easier to pursue an individual. For example, Australian television viewers were recently treated to the sight of media crews ‘staking out’ the home of former Senate Deputy President Mal Colston after questions of travel entitlement irregularities were raised in the Federal Parliament.24 Another aspect of the media-government relationship is found in the mediamanagement strategies adopted by individual politicians and governments as a whole over the last few decades which attempt to both maximise and contain media coverage. Governments appoint senior members of the press gallery as media advisors/press secretaries to the personal staffs of ministers and other legislators. Individual politicians (particularly those on the campaign trail) will undertake the same process. With a working knowledge of how the press gallery operates and good contacts among their former colleagues, these advisors have clearly defined responsibilities: to present their member in the best possible light; to try and contain any damage that might affect that person’s political career; and to ensure that negative coverage is about one’s political opponents. It is a particularly difficult job, one which can place enormous strain on the relationship the media advisor had with their former journalistic colleagues, relationships which were part of the reason for appointment in the first place. On the one hand, they are expected (by their political masters) to perform a gatekeeping role. They are also expected (again by their political masters) to nurture a relationship with the media that will guarantee positive coverage when the legislator wants to talk to the press. For their part, the journalists tend to expect a degree of give and take on the part of legislators and their staff, particularly those they have worked with. Whilst they acknowledge that press secretaries and other media advisors perform a gatekeeping role for obvious political reasons, they do bemoan the lack of direct access to legislators the creation of such positions has caused. The majority of journalists believe that the creation of press secretarial positions is a further impediment to their being able to perform an effective watchdog role: to hold governments accountable. Governments in particular have adopted other media management strategies in recent years. For example, the Australian Prime Minister no longer holds regular formal press conferences during which journalists can ask wide ranging questions on virtually any topic. Instead, they and other politicians are opting for the so-called ‘doorstop’ interview which they can walk away from without appearing to be running away from an issue or a difficult line of questioning. Doorstop interviews also give the politician the opportunity to give the response he or she wants, thereby enabling them to maintain some control over the political agenda. This strategy can be effective when a Government or politician is under siege. Journalists are disadvantaged by this 97

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practice because they do not have time to develop a line of questioning, as in a formal press conference. Doorstop interviews also reinforce the image of a media ‘feeding frenzy’ and unfortunately encourages superficiality, another of the criticisms often directed at the media. Another approach adopted by political leaders in recent times has been to appear live on programs, both television and radio. Whilst this has left them vulnerable to the unexpected question, such a strategy has enabled them to say what they’ve wanted without fear of it being edited out of context. However, those journalists or media organisations who are not favoured by such patronage have to rely on the ubiquitous press release or a comment from a ministerial minder to provide substance to a story. Giving the strategies many political leaders now employ, it is not surprising that the relationship between journalists and politicians has changed and become more adversarial than previously. Perhaps this also helps to explain why journalists pursue stories involving possible ethical breaches by political figures with such zeal. They provide an outlet for such frustration to be vented.

A CASE STUDY: THE METHERELL AFFAIR Given this background, it would now be useful to look more closely at a specific case of the media-politician relationship. In doing so, one should look at how well the media covers ethical issues, including alleged breaches of the responsibilities of office and even borderline questions such as breaches of promise. Are such issues treated as moral or ethical dilemmas or simple political questions? Do they provoke ‘feeding frenzy’ responses on the part of the media? The 1992 Metherell affair in New South Wales provides an interesting case study for a number of reasons. First, it involved a high-profile state Premier, Nick Greiner, who had built his political reputation and won government on a promise that he would clean up institutional corruption and introduce higher standards of probity for legislators, particularly ministers of the Crown.25 Secondly, it highlights how media management strategies must be carefully thought out if the government (or opposition) is to retain control of an issue. As Dyer notes, organisations involved in a crisis event have only a limited time frame or ‘window of opportunity’ in which to present their side of an argument to the media (Dyer, 1995, p 60). If they are too slow in responding to allegations or defending their actions, the opportunity for positive or even fair coverage can be lost.

The Background In 1992, Dr Terry Metherell, a former NSW Liberal Education Minister turned Independent was offered a A$ 110,000 per annum position with the recently established Environment Protection Authority (EPA). Metherell had been offered the position after advising a government backbencher, Brad Hazzard, that he was tiring of politics and, with the birth of his first child imminent, was looking at other options. These comments were passed on initially to the minister responsible for the EPA, Tim Moore, 98

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a close friend of Metherell’s, and later to the Premier. According to reports, Greiner did not oppose the appointment so long as it was to a position for which Metherell was suited and it would not cost the government additional money. Negotiations proceeded over several months, with a number of options being canvassed before Metherell was appointed to the EPA position. In order to appear to follow the requirement of the Public Sector Management Act 1988 (NSW) which required that the appointment be made by the relevant departmental head, it was suggested that Metherell apply for a position which had already been advertised within the Premier’s Department and that he could then be seconded to the EPA (thus seeming to avoid a ‘job for the boys’ appearance). Metherell’s resignation as a Member of Parliament and his subsequent appointment to the EPA were announced at a joint press conference held on Saturday, 11 April 1992. In many respects, the appointment was not that different from countless other ‘jobs for the boys’ appointments which had characterised NSW and, for that matter, Australian politics for decades.26 Like most such appointments, it was made to secure the government’s political position, something that had become increasingly precarious since it had lost the balance of power at the previous state election. However, in this case, there were a number of distinguishing features. First, unlike most of his predecessors who had made similar appointments, Nick Greiner was not in a position to tough out the response to the appointment; he was aware that he could be condemned by the Parliament (and ultimately was, first through a censure motion and later through the actions of the non-aligned Independents who demanded and secured his resignation). Secondly, Greiner had been elected to office on a promise that he would eschew political appointments; by sanctioning the Metherell appointment, he was seen to have breached that promise. Finally, there was a problem because of who the appointee was. Metherell was enormously unpopular. As Education Minister in the Greiner government’s first term in office, he was seen as largely responsible for the government’s poor showing at the 1991 election. He was also disliked for having abandoned the party to sit on the crossbenches soon after and for his trenchant criticism of the government and the Premier since then. Despite anticipating that there would be an outcry, the government mishandled its early defence of the appointment. Tim Moore, the minister who had sought and authorised Metherell’s appointment, avoided the media and advised Metherell to do the same.27 Moore even refused to answer written questions put to him by journalists. Not surprisingly, this was highlighted by the media. Carriage of the issue was left to the Premier who, whilst he faced the media on a regular basis and showed some contrition, tried to play down the significance of the appointment and his role therein. That, coupled with an apparent, albeit understandable, reluctance on the Government’s part to release the details of the appointment, particularly the negotiations thereof, did little to appease journalists. It was not long before the media began to portray the Government—and more particularly the Premier—as being under siege. The Government had lost its ‘window of opportunity’; consequently, later attempts to ‘sell’ the appointment to the public through the media fell on sceptical (if not deaf) ears. 99

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The appointment led to calls from the Opposition, various independents, the media and other sections of the community for Dr Metherell to be dismissed without compensation. The Opposition even threatened to introduce legislation which would seek to annul the appointment retrospectively. Following this and subsequent pressure, Greiner met with Metherell to suggest he resign from the position. However, Metherell rejected the request, offering instead to stand down pending a proposed inquiry, which was eventually undertaken by the state’s Independent Commission Against Corruption (ICAC).28 ICAC conducted its inquiry in mid to late May 1992, with the report handed down almost a month later. While it considered that Greiner and Moore’s conduct amounted to a deal which ‘involved exchanging a Government job for a parliamentary seat’ (ICAC, 1992, p v), it also found that they had acted outside the requirements of the Public Sector Management Act. Their conduct, while undertaken in the ‘jobs for boys’ mentality, was found corrupt under the particular requirements of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC, 1992, p v).29 Greiner and Moore appealed ICAC’s finding to the NSW Supreme Court, which found in a 2:1 majority that ICAC’s commissioner had not applied objective, legally recognised standards when reaching his conclusions but rather his own ‘personal and subjective opinion’.30 However, the Court of Appeal finding was too late to save the political careers of Nick Greiner and Tim Moore. Moore used the ICAC inquiry to announce that he would be resigning as a legislator. Following pressure from a variety of camps and the possibility of a change in government, Greiner resigned, although he waited until after the Court of Appeal decision to announce his departure from politics.

The Media and the Metherell Affair Not surprisingly, the Metherell affair received widespread coverage in all media. In the 4 1/2 months between the announcement of the appointment and the handing down of the Court of Appeal decision, four large newspapers (the Australian, Sydney Morning Herald (SMH), Daily Telegraph Mirror (DTM) and Financial Review) published 940 articles on this issue, including 374 in the SMH, 243 in the Australian, 256 in the DTM and 67 in the Financial Review. Articles dealing with this issue were published on 84 out of 128 potential publication days (SMH); 64 days (Australian); 62 days (DTM); and 40 out of 101 potential publication days (Financial Review).31 There were 130 journalists and commentators who had bylined articles on this issue published during that period (40 in the DTM, 39 in the SMH, 37 in the Australian and 14 in the Financial Review). The four newspapers also published more than 290 letters to the editor, the overwhelming proportion of which were critical of the appointment and/or the Premier’s involvement therein. From the outset, the media was critical of the appointment and the government’s handling of it. Early commentaries criticised the government for the timing of the announcement: a Saturday morning at the end of a parliamentary session when most

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senior political journalists would be away from work. Journalists were also critical of Greiner’s decision not to discuss the appointment with his cabinet colleagues or even his advisors. Neither his press secretary, chief of staff nor Director-General of his Cabinet Office (and architect of his earlier anti-corruption strategies) were aware that the appointment was to take place. All three were journalists (or former journalists) and well qualified to advise the Premier on the development of a media strategy. Although such a strategy had in fact been discussed in earlier talks between Moore and Metherell, Metherell was concerned that the proposed appointment would be leaked to the media. Further, Moore’s supposed willingness to wear the public opprobrium the appointment was expected to generate meant that very few people were advised of the proposal. In fact, Moore’s press secretary was not told until after the appointment had received the Governor’s imprimatur. His statement that Moore would be holding a press conference the following day made no mention of the nature of the announcement. He stressed that it would be an important announcement, one which related to the future of the Government. And that was the tag to attract the journalists. Thus, the above-discussed role of media advisor as a gatekeeper, disliked by the media, in fact worked to the media’s favour as the politicians didn’t utilise the role to its intended outcome.

Media Coverage Assessed The press conference was well attended, despite the timing. Metherell’s appointment received widespread coverage on television that night and in the Sunday newspapers the following day. However, the media did not really go overboard in its early coverage. Apparently inured to such practices by earlier Premiers, the initial response of journalists generally was not one of outrage. They questioned the ethics of the appointment but tended to see it for what it was: an ill-conceived attempt to shore up the Government’s hold on office. That attitude changed somewhat after 16 April, when the SMH devoted almost its entire letters to the editor page to coverage of this issue.32 Whether the media was spurred on by an early letter writing spree by readers is a moot point. Certainly some sections of the media built up a sense of public outrage. However, this was a practice which was not universally endorsed. One commentator took his colleagues to task for this kind of ‘reporting’. Padraic McGuinness argued: ‘I at least have had some difficulty in descrying evidence of the kind of outraged public outcry which is asserted by most of the media to exist’ (McGuinness, 1992, p 9). McGuinness went further in suggesting: [although loud protest and active investigation of the details of the Metherell appointment are justified, it is obvious that much of the media indignation is contrived. This is, in part, a product of bias against the Greiner Government, but much more important is the habitual concentration of political reporting in this country, both at the federal and State levels, on personalities and political ‘clang’. (McGuinness, 1992, p 9)

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McGuinness was not the only person to criticise the media’s coverage of the Metherell affair. During the ICAC inquiry, counsel for various witnesses— particularly Metherell and Greiner—expressed concern at particular aspects of the evidence. On Day 2 of the hearings, David Rofe QC, counsel for Metherell, urged Commissioner Temby to consider contempt action against Mrs Kathryn Greiner, the wife of the Premier, and Mr Alan Jones, a well-known Sydney radio commentator. The media had reported that, when speaking at a lunch the previous day, Mrs Greiner had called Dr Metherell a ‘drama queen’. Mr Jones had publicly condemned Dr Metherell over the content of his diary entries and the Commission for allowing them to be published by the media. Roger Gyles QC, counsel for Greiner, was particularly critical of the SMH for a page one headline and story it published on 13 May. He said that the headline ‘Greiner misleads ICAC’ was ‘so wrong as to be contemptuous’.33 This headline was later cited by other counsel as justifying the argument that closing submissions to the Commission should be held in camera. In the aftermath of the ICAC report, Greiner and a number of other government ministers were also critical, claiming that the Metherell affair was a media construct.34 In the Court of Appeal, Priestley JA also expressed concern in his judgment at aspects of the media’s coverage of the inquiry process, although he was careful to suggest that the fault did not rest solely with the newspapers ‘but flowed at least in part from the Act’.35 In many respects, the media’s coverage of the Metherell affair can be labelled ‘responsible’. The media did not keep the issue artificially alive during quiet periods (eg the 3-week period between the end of the ICAC inquiry and the release of the ICAC report); instead, it was active in the periods surroundings the main events. This included the period immediately following the announcement of Metherell’s resignation and appointment when the Opposition, the non-aligned Independents and the public generally were seeking to find out what type of a deal had been done and whether any impropriety or illegality was involved; the 12 days during which ICAC heard evidence; the aftermath of the ICAC report being handed down and the response to it, including calls for and Greiner’s ultimate resignation; and, finally, the handing down of the Court of Appeal decision. In other respects, however, the coverage could be described as wanting. Throughout the inquiry, the media’s focus was on conflict, particularly between Metherell and Greiner but also between the friends Metherell and Hazzard and Metherell and Moore. In this, the media was aided by the way in which the inquiry was conducted; once witnesses entered the witness box, they were virtually ‘captive’. For the media, this meant that witnesses were obliged to answer the questions which they may have been able to avoid in the early days following the announcement of Dr Metherell’s resignation from Parliament and appointment to the EPA. Secondly, they were assisted by Dr Metherell’s exploits as a diarist. These were highly personal and damaging. Metherell had drawn on these diaries when preparing the written statement he had submitted to ICAC. By contrast, Greiner, Moore and Hazzard did not use diaries when preparing their statements. When their respective interpretations were read out during the hearing, there were found to be significant disparities, particularly in relation

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to the timing of the first meeting between Greiner and Metherell and the above-noted telephone conversation. The media made much of these different interpretations, particularly a claim from Metherell while under cross examination that the only improper approach he had received during the negotiation process had come from the Premier. That approach, which he said he ignored, came from the Premier during the 9 March telephone conversation. According to Metherell, Greiner had rung him that night to discuss the Timber Industry (Interim Protection) Bill, which Metherell had previously opposed. He said the Premier had intimated that a compromise on that bill might be ‘helpful in resolving the other matter’ (which Metherell took to mean the job). Not surprisingly, the media seized on Dr Metherell’s comments and it was widely reported that Greiner’s hold on the Liberal leadership would depend on his ability to refute Metherell’s allegations when he took the witness stand. When he did, journalists decried almost as one the Premier’s appearance in the witness stand. They were critical of the fact that he could not remember aspects of conversations with Metherell. The main stories in all four newspapers referred to his memory lapses. Two newspapers (the SMH and the DTM) built on this over a number of days, with cartoons highlighting how poor his memory was. Not only did the media rely on their own observations, they also quoted ‘sources’ and ‘senior government figures’ to reinforce their view that Greiner’s appearance in the witness stand did nothing to alleviate the concerns of his party or to shore up his leadership. In fact, it might be suggested that the media was more interested in the potential consequences of the inquiry than the appointment that inspired it. Almost from the outset, media commentators began to speculate whether Greiner’s leadership could survive the ICAC inquiry. The Australian in particular appeared to be interested in his future, with journalists regularly suggesting that other leadership hopefuls were counting numbers whilst the Premier was dealing with the inquiry process (see, eg, Cooper, 1992a, p 1; Ferrari, 1992, p 1; Cooper, 1992b, pp 1, 2; Ferrari and Richardson, 1992, pp 1, 2; Coultan, 1992, p 1; and Morris, 1992, p 9). The other newspapers picked up on this as well, thereby building on the impression of conflict within the party. The press continued to pursue this theme despite Government attempts to play it down. Given this focus on Greiner and his leadership, it is interesting that when the ICAC handed down its corruption finding against him, the media was generally supportive of him. The SMH argued that he should resign, not because he was corrupt but because it considered the integrity of the ICAC more important than his future as leader (Coultan, 1992, p 22). In fact, none of the newspapers accepted that he was corrupt according to popular definitions of the term. Whilst they believed that he had been naive in agreeing to the appointment, they did not believe he should have been forced from office by the Independents before he had had the opportunity to clear his name in the Supreme Court. In fact, the media almost unanimously rallied behind Greiner and the editorials which followed his resignation were laudatory, both of him and his achievements as Premier of NSW.

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The media appeared to lose some interest in this issue once Greiner and Moore had resigned. They covered the Court of Appeal hearing, although without the same level of resources as those devoted to coverage of the earlier ICAC hearing. Instead of devoting multiple pages to the arguments of counsel, the four newspapers noted each allocated one story per day to the appeal hearing. This involved just one journalist, rather than the six or seven the larger newspapers allocated to coverage of the ICAC hearing. Coverage did increase on the day following the release of the Court of Appeal finding. And there was some coverage in the days that followed, particularly whilst journalists were waiting to hear whether the ICAC intended to appeal the finding to the High Court, as had been suggested. When it was announced that this option would not be pursued, media interest in the issue ceased almost overnight.

CONCLUSION Media coverage of the Metherell affair highlights the difficulties journalists have in covering ethical issues, particularly those that are difficult to categorise as being contrary to legal standards or established community standards. There is the whole issue of the process; the situation under question may be considered poor politics: ethically questionable but in no sense illegal. The continual difficulty in trying to balance principles with politics is not unlike the media’s juggling act between acting as a public watchdog and securing their market. This seems to make it that much harder for the media to objectively assess and present such political and ethical dimensions in a balanced light, focusing upon the complex issues of concern and not those tangential to the debate. The result of this balancing act is frequently demonstrated in the media’s focus on conflict and individuals. While an ethical issue may initiate coverage, the complexity of the issue (not easily boiled down to a sound bite) is often abandoned for those aspects that are more easily accessible: political careers, personal statements, juicy extracts from diaries. The symbiotic, give-and-take relationship between the media and politicians can often deteriorate into a mutually hurtful exercise, leaving the public none the wiser as to the ethical ramifications of the situation but-that much more cynical and mistrustful of both the politicians and the media. Thus, the power of the media in legislative ethics is one which must be recognised on all sides for its potentially unreliable nature. It can be a respectable watchdog, guarding what is valuable (an accountable government) for the good of the owner (the public), roaming freely within a fenced enclosure (acting within the guidelines of fairness and public (and not self) interest). As with a watchdog, the public will be conscious of the media’s powerful jaws and claws but grateful for and generally supportive of the need for its well-trained presence. Or the media can be an erratic junkyard dog, loudly chasing after bits of rubbish of little real use but often of prurient and transitory interest (scandals), frequently jerked back by its rough chain (the constraints of market and scoop mentality). As with a junkyard dog, the public remain wary of the media’s bark, fearful of its bite but contemptuous of both it and what it is protecting.

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NOTES 1

2

3 4 5

6

7

8

9

10

11

These included the 1989 Fitzgerald Inquiry in Queensland (an inquiry which began by looking into police involvement in illegal prostitution but expanded to include the activities of MPs), Western Australia Inc (an investigation of illegal business dealings in Western Australia in 1992 which resulted in several former state premiers and other high ranking party figures being gaoled), the 1991 Rouse Royal Commission in Tasmania (an inquiry into an attempt by a media proprietor to bribe a newly elected member of the Tasmanian Parliament so as to change the balance of power in favour of the incumbent minority government) and the 1992 Metherell Inquiry in New South Wales (discussed in more detail below). The so-called ‘cash for questions’ affair reached a climax following the 1997 UK general election when five former Tory MPs were criticised in a report by the Parliamentary Commissioner for Standards for receiving payments in return for asking questions of ministers. One former MP, Neil Hamilton, was accused of receiving thousands of pounds from the owner of Harrods, Mohamed al Fayed. Hamilton, who lost his seat at the 1997 election after being defeated by a former BBC journalist who campaigned on an anticorruption ticket, has claimed he was the victim of a miscarriage of justice (see Jones, 1997, pp 1–2). These scandals are explained in detail in Thompson (1995). With the recent dismissal of the case from court, Clinton has survived yet another scandal, albeit potential. At the time of writing, a number of current and former Australian federal legislators were facing fraud charges over the misuse of travel funds. They include the former deputy President of the Australian Senate, Mal Colston, and a former senior Liberal Party Senator, Noel Crichton-Browne. Former West Australian Premier Carmen Lawrence has pleaded not guilty to charges arising from evidence she gave before the Marks Royal Commission. It found that she had lied when giving evidence about her knowledge of the so-called Penny Easton Affair in WA.Penny Easton was a lawyer who had committed suicide. The Marks Commission was appointed to inquire into the evidence Dr Lawrence gave when she appeared before the Easton Royal Commission. Poll results concerning the public’s view of politicians on state and federal levels in the US and Australia are given in Rosenthal, ch 2; Mancuso, ch 5; Smith, ch 3; and Burgmann, ch 9. Only 20% agreed (52% disagreed) with the statement that the quality of federal MPs today is better than it was 20 years ago and 38% agreed (54% disagreed) that federal MPs listen and respond to community concerns. Asked what they believed the priority of federal MPs to be, 39% said looking after themselves, 36% that it was to represent the interests of their electorate, 22% to represent their party, while 4% couldn’t say. This chapter is primarily limited to the relationship between the media and politicians/ governments in majority or in power. Regretfully, there is not space here to address the relationship between the media and minority parties or groups, who often have difficulty in receiving media attention. There are a number of ways in which concerned citizens can respond to the behaviour of legislators: (1) by voting against them at the next election; (2) by letters to the editor; and (3) other forms of protest action, including rallies, marches and even letter-writing campaigns to the politician or political party involved. One of the principal criticisms of the media is that it confuses issues that are genuinely ‘in the public interest’ with those that are merely ‘of interest to the public’. The former fulfils the media’s public service role and responsibility, the latter its entertainment function. 105

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12 13 14 15 16 17 18 19

20

21

22 23

24

25

26 27

28

One of the best known works in this field is the seminal 1972 study by McCombs and Shaw (1972). Speaking from a politician’s perspective, Burgmann, ch 9, notes this in disgust. The results of this survey were published in the Bulletin, 9 May 1995. 44% fair; 36% poor; 4% can’t say. 50% fair; 29% poor; 2% don’t know. 49% fair; 39% poor; 3% don’t know. Rosenthal, ch 2, ‘The media’s bias’, considers this development in the US context and notes the economic motivations for such changes. These include former Australian Labor Party powerbroker and federal Government minister, Graham Richardson (see Richardson, 1994) and former New South Wales Education Minister, Terry Metherell (see Independent Commission Against Corruption, 1992, pp 200–1). There is of course the added element of political party working with the media to sabotage an opposing candidate (eg Richard Nixon’s leak to the media in 1972 about the mental health history of the wife of his presidential opponent, Edmund Muskie. Muskie withdrew from the presidential race as a result of the leak). A public confession from former Australian Prime Minister Bob Hawke, whilst he was in office, that he had not been faithful to his wife was covered by the media but not in any sensational or on-going fashion. Likewise, a story that then Opposition leader Dr John Hewson had purportedly divorced his first wife because she did not fit in with his political ambitions was also covered by the media but more so by the magazine-style media (both electronic and print) than the political media. There are some exceptions. The British publication Private Eye is frequently the defendant in defamation actions brought by public figures. The possibility of uniform legislation was mooted in the early 1990s. (See Well, 1991, pp 39–44.) The issue has been listed on the agenda of the Standing Committee of AttorneysGeneral but is not expected to be finalised in the near future. Significantly, however, this case was not initiated by the media. Rather, it was generated by the Senator’s political foes (members of the political party he had recently defected from) and it was presented to the media in a way it could hardly ignore. This included the introduction of a Code of Conduct for Ministers of the Crown. Interestingly, the incoming Premier did not consider it appropriate to extend the Code to all legislators. Perhaps this could be explained by the overall reluctance of Australian legislators to subject themselves to such constraints. It has only been during the 1990s that Australian parliaments have dealt (struggled) with this issue. See Burgmann, ch 9, and Kernot, ch 10, for in-depth discussions of Australian developments on state and federal levels. Of course, such practice is not limited to Australia but can be found in varying degrees in many countries. Metherell and his wife departed for a holiday in Vanuatu, although their peace was shortlived. Australian media organisations were able to track them down and several sent journalists and photographers to the island in an unsuccessful attempt to interview Metherell. The photographers, however, were more successful, managing to capture Dr Metherell and his pregnant wife on a paddleboat. They also photographed the couple’s villa and these were used to illustrate stories about them holidaying in paradise while the crisis developed in Sydney. The inquiry had been suggested by two of the three non-aligned Independents who held

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29 30 31

32

33

34

35

the balance of power in the Lower House. Originally, this was to have been a parliamentary inquiry but Greiner later agreed that it should be conducted by ICAC. For a fuller discussion of the ICAC findings, see Tanner, 1995, p 48. Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 147 per Gleeson CJ. The difference between potential publication days for the Financial Review and the other newspapers is explained by the fact that the Review was published Monday to Friday, with the others published Monday to Saturday. Noted in ICAC, 1992, p 4: ‘It did not take long for the media to work themselves into a lather of righteous indignation, although it does seem that on this occasion the public led and they followed.’ The story claimed that Greiner had misled the Commission by not advising it of a telephone conversation he had with Metherell on the night of 9 March, the day before a vote on crucial government legislation. Metherell had advised the Commission of the telephone conversation in a written submission and again during cross-examination. Greiner had not recalled the conversation when preparing his written statement; however, he later advised the Commission through counsel that the conversation had taken place, after a telephonist had recalled placing the call to Dr Metherell. It was these criticisms which hardened the resolve of the three non-aligned Independents against Greiner and Moore. They were concerned that the Government planned to reduce the powers of the ICAC. Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 180.

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8 CHANGING INSTITUTIONAL ETHICS The New Zealand Case

Colin Hicks

INTRODUCTION The New Zealand experience of legislative ethics is set against a backdrop of change. New Zealand is a democratic parliamentary monarchy. As head of state, the British Queen reigns but the Government rules. The powers of the Queen and her representative the Governor-General are, generally speaking, exercised only on the advice of ministers. Parliament, which consists of the House of Representatives and the Sovereign, has full power to make laws for New Zealand. The Government continues to rule only while it has the support of the democratically elected House of Representatives. In 1993, New Zealand changed from a solely first-past-the-post electoral system to a proportional representation (multi-member proportional or MMP) system, signaling a further departure from the Westminster model upon which many of its institutions are based. The possibility of one party holding a majority of votes or seats in the House of Representatives and being able to form a majority government are less likely now than before. A high probability exists of New Zealand having coalition or minority governments in the future.1 (This contrasts with recent experience where the party in power has held a majority of seats in the House of Representatives but not a majority of the votes cast by the voters.) Sixty-five members of Parliament are elected by electorate voters on a first-past-the post basis, with the balance from a political party list. The total number of seats for each party is determined on a ‘proportional’ basis from the total ‘party’ vote. The full effect of the changes on the conduct and formation of governments, Parliament and members of the House of Representatives is unknown. What is known is that the number of members have grown from 90 (under the ‘old’ system) to at least 108

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120 under the present system. Indications are that the average age of a legislator will be younger than their predecessor and that he or she will leave public office at an earlier stage. A career in politics as a professional politician seems less attractive than it may have been in the past. In the recent general election, 45 first-time legislators were elected. As a group, legislators will probably be a more diverse body of individuals than ever before. They are likely to be more representative of the general electorate, reflecting diversity and changing values of New Zealand society. This may be particularly true in the case members of parliament who are elected from a party list. In anticipation of the new electoral system, much work was undertaken to anticipate and prepare for change. For instance, Standing Orders of the House of Representatives were revised substantially to reflect the changed electoral en