Tuesday, July 11th, 2017
More than 200 years ago, James Madison posed a powerful and prescient rhetorical question: “What is government itself, but the greatest of all reflections on human nature?”
“If men were angels, no government would be necessary,” Madison continues. “If angels were to govern men, neither external nor internal controls on government would be necessary.”
Amid the recent whirlwind of a record number of “ethics waivers,” accusations of unprecedented conflicts of interest and lawsuits charging the president with constitutional violations, no one is calling the current administration angelic.
But a key question often overlooked in the flurry: Where did these laws, codes and rules come from in the first place?
The history of U.S. government ethics, ranging from conflict of interest rules to anti-corruption and bribery laws, is pockmarked by colorful controversies and polemical politicians. In the name of historical context, here are some of the most famous, along with a few of the watershed moments in government ethics — a field of legal studies that may have once seemed stodgy but now feels urgent.
‘LET HIM WHO DISOBEYS … SIMPLY DIE’
In one way, modern-day U.S. ethics laws can be traced back to mid-17th century Holland. In another, they date back to 300 B.C.
In 1651, Dutch lawmakers had a radical idea: Foreign ministers should not be allowed to accept “any presents, directly or indirectly, in any manner of way whatever.” At the time, this staunch stance against corruption and conflict of interest flew in the face of European diplomatic custom. As ethics expert and scholar Zephyr Teachout wrote in her book, “Corruption in America,” Holland’s new law was “so far outside the normal state of affairs that it was ridiculed for its sanctimony.”
Abraham de Wicquefort, a Dutch political theorist writing at the time, excoriated lawmakers for enacting this prohibition on gift-giving: “The custom of making a present is so well-established that it is of as great an extent as the law of nations itself, there is reason to be surprised at the regulation that has been made on that subject in Holland.”
Painting by Raffaello Sanzio, 1509
Cropped detail of Sanzio's "School of Athens" (1509), showing Plato (left) and Aristotle (right).
This Dutch rule, Teachout wrote, may have its roots in Plato’s dialogue, “Laws,” where he said (rather emphatically), “Those who serve their country ought to serve without receiving gifts … and let him who disobeys, if he be convicted, simply die.”
This history is important to note because though the Founding Fathers did not treat conflicts of interest as capital offenses, they did take them seriously. And this early thinking about ethics undergirds the laws that govern U.S. political behavior today.
The Articles of Confederation, America’s first national constitution , was also the first U.S. document to borrow explicitly from the Dutch and codify an anti-conflict of interest rule. Less than 10 years later, Benjamin Franklin tested the new law.
According to historical accounts, when Franklin — America’s first ambassador to France — left Paris in 1785, King Louis XVI presented him with what would become Franklin’s “most precious treasure.” Yet, to politicians in America, it smacked of a potential conflict of interest. The gift, a diamond-encrusted portrait of the king on a golden snuff box, Teachout noted, signified two very different ideas in France and in America.
“In Europe, in other words, the gift had positive associations of connection and graciousness; in the United States, it had negative associations of inappropriate attachments and dependencies,” she wrote.
And, under the Articles of Confederation, it was technically illegal for Franklin to keep the gift, unless he received an OK from Congress. Even as the country’s newspapers brimmed with conspiracy theories about French attempts to influence Franklin and, somehow, colonize America, the U.S. Congress told Franklin he could keep his diamond-clad portrait.
This and similar episodes reinforced the founders’ belief in conflict-of-interest rules. And at the Constitutional Convention — two years after Franklin returned — the delegate Charles Pinckney from South Carolina argued for the inclusion of a rule much like the Dutch law and the provision in the Articles of Confederation. The result was Article I, Section 9, Clause 8,otherwise known as the Foreign Emoluments Clause.
The provision reads:
No Person holding any Office of Profit or Trust under them [i.e., the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
At the time, such a strongly worded code about government ethics was almost unprecedented.
The National Constitution Center writes, “The Clause is a solid example and strong evidence of the radicalism of the Framers’ anti-corruption commitment—a commitment that constitutionalized an anti-corruption rule which flew directly in the face of international convention.”
The once-obscure clause has recently resurfaced — but more on that later.
‘NOTHING CAN BE DONE ABOUT IT’
Long before the Watergate scandal in the 1970s and the Iran-Contra affair in the 1980s, a controversy known as the Yazoo land fraud roiled American politics.
“If you were a politically active American in the 1790s and early 1800s, you would have had an opinion about Yazoo,” Teachout wrote.
Map by Allen Johnson, 1915
Areas involved in the Yazoo-Georgia land scandal.
“Yazoo” refers to the land around the Yazoo River — what is today the states of Alabama and Mississippi, and what was then recently occupied Native American land. In the 1790s, the Georgia legislature, which laid claim to all this land, sold it for pennies on the acre to a gaggle of land speculators (literally, pennies: some acres sold for less than 1 cent). Turns out that nearly every lawmaker who voted for the Yazoo Act — along with newspaper editors and other prominent Georgians — was paid off by those very speculators.
“Cries of bribery and corruption accompanied the Yazoo Act as it made its way to final passage,” wrote Georgia historian George R. Lamplugh. “Angry Georgians protested the sale in petitions and street demonstrations.”
In his book “Bribes: The Intellectual History of a Moral Idea,” John T. Noonan Jr. detailed the brazenness of the political climate in Georgia at the time, where one Georgia legislator was reproached for selling his vote for just $600 when other lawmakers were getting $1,000.
The lawmaker replied that it “showed he was easily satisfied and not greedy,” Noonan wrote.
But those angry Georgians took to the polls in the next election and, Teachout wrote, “‘The only issue was Yazoo and anti-Yazoo.’ The public threw out every lawmaker who had voted for the deal.”
Then, not only did the new legislature void the bill, but also, according to Noonan, “The engrossed bill was ordered to be ‘publicly burnt in order that no trace of this unconstitutional, vile, and fraudulent transaction, other than the infamy attached to it by this law, shall remain in the public offices.’”
Yet after the law was thrown out, a key question remained: Who owned the land?
The state of Georgia, or all the people who had purchased the land from the speculators? (The only real answer — the Native Americans — was obviously off the table, and there’s actually evidence that the Yazoo land fraud led to the “Trail of Tears” in 1838.)
In an interview with Teachout, On The Media host Brooke Gladstone summed up the hullabaloo this way: “So the speculators that had bribed the Georgian legislators sold the land to people who thought they had a legitimate contract, and basically the [U.S. Supreme] Court said the contract superseded the anti-corruption concerns raised by Georgia.”
The Chief Justice of the Supreme Court at the time, the revered John Marshall, would later refer to himself as “a first-rate speculator,” wrote his biographer R. Kent Newmyer.
Teachout wrote that it was unsurprising Marshall sided with the Yazooists: “Marshall noted with sorrow and condemnation that ‘corruption should find its way into the governments of our infant republics, and contaminate the very source of legislation.’ But his answer, in effect, was that nothing can be done about it.”
Noonan wrote that this episode is important because it laid out the legal consequences, such as they were, for this sort of government corruption.
“Beyond doubt the affair showed that at the start of the new Republic that bribery in legislative affairs ran only the risk of political sanction, and that that sanction could be effectively blunted,” Noonan wrote.
‘TOO BIG TO BE INFLUENCED BY ANY GIFT’
In Congress, for most of its existence, potential ethics violations were dealt with on a case-by-case basis, noted Richard A. Baker, the first historian of the United States Senate.
“For nearly two centuries, a simple and informal code of behavior existed,” he wrote. “Prevailing norms of general decency served as the chief determinants of proper legislative conduct.”
But in the 1950s, the U.S. Congress passed a resolution that would, for the first time, put words to these informal practices, establishing ethical standards for the legislative branch and setting the precedent for modern-day ethics rules, Kathleen Clark, a law professor at Washington University in St. Louis, said in a recent interview.
Adopted in 1958, the Code of Ethics for Government Service was the result of a House investigation of then-President Eisenhower’s chief of staff, Sherman Adams, “who was alleged to have received gifts from an industrialist being investigated by the Federal Trade Commission,” wrote Jacob R. Straus, a Johns Hopkins adjunct and former analyst at the Congressional Research Service.
One of the gifts in question? A coat.
Photo from Wikimedia Creative Commons
A vicuña grazing the field in Munich, Germany.
Well, a vicuña coat, to be exact, which is made from the exceedingly soft, rare and expensive wool of a South American llama-like animal.
His New York Times obituary calls Adams’ acceptance of that coat the beginning of his “downfall.” (He was also the benefactor of $2,000 in hotel bills and a $2,400 rug.) It was argued that these lavish gifts may have persuaded Adams to vouch for the industrialist and textile magnate Bernard Goldfine while he was under federal investigation.
Adams denied wrongdoing but resigned amid a public outcry, which culminated in a TIME Magazine cover story. Goldfine was later sentenced to a year in prison for tax fraud and ordered to pay a $110,000 fine.
Around that same time, Adams’ boss, President Eisenhower, was himself the subject of some eyebrow-raising conflicts. In his oft-cited article, “Presidential Ethics and the Ethics of the Presidency,” the scholar Stuart C. Gilman wrote that Eisenhower “had little personal taste for many conflicts-of-interest rules.”
In his first three years in office, Gilman noted, Eisenhower accepted more than $40,000 in gifts for his Gettysburg farm. In a recently reiterated argument, one of Eisenhower’s aides claimed, “The office of the president is too big to be influenced by any gift.”
(So when now-President Trump said, “The law’s totally on my side, meaning the president can’t have a conflict of interest,” he’s echoing Eisenhower, who said, “Conflict-of- interest law does not apply to me.”)
This was all particularly ironic at the time, considering Eisenhower’s drain-the-swamp campaign promise — ”throw out the corruption” — and his choice of running mate.
In a 1952 campaign ad, then-vice presidential candidate Richard Nixon can be seen reiterating his running-mate’s sentiments: “I am proud of the millions of fine, good, honest, decent, loyal people that work for the federal government. And I say that the best thing that can be done for them is to kick out the crooks and the others that have besmirched their reputations in Washington, D.C., and that’s what we’re going to do.”
Eight years later, John F. Kennedy ran on an ethics platform that was nearly identical to Eisenhower’s. But this time around, Gilman wrote, Kennedy actually backed it up.
“He had this comprehensive approach,” said Clark, the law professor. “It was a more organized approach to government ethics.”
Kennedy was the first president to sign an Executive Order on ethics — something that has since become standard practice — which established ethical standards for presidential appointees and nominees. President Lyndon Johnson then followed up on this with an order that covered the entire Executive Branch.
‘UNPRECEDENTED CONSTITUTIONAL VIOLATIONS’
The most important development in the laws relating to U.S. conflict of interest began one night in the headquarters of the Democratic National Committee at the Watergate complex, and culminated six years later in the passing of the Ethics in Government Act of 1978.
One of the key parts of the law was the creation of the Office of Government Ethics. This, Gilman said, was a big deal.
“For the first time in American history, the entire executive branch of the federal government had one oversight system,” he wrote.
In “Paradoxes of Government Ethics,” Harvard University political scientist Dennis F. Thompson detailed the fledgling office. In its first year, he wrote, the ethics office had fewer than 20 staffers (the office now has 70 full-timers but is still considered tiny) and was charged with limiting conflicts of interest across the government — a monumental task.
Despite the office’s size, when it was established, members of Congress were nervous.
One described it as “a sort of independent police force, a band of roving commissars, “who, he feared, would be “sprinkled throughout the various government agencies willy-nilly on a rotating basis to look under every leaf and twig.”
Over the years, officials became less paranoid than, simply, annoyed.
Former Congressman Otis Pike, D-N.Y., told his fellow representatives that they weren’t “sent here to appear ethical. You were sent here to write laws and resolve problems. Your preoccupation with each other's ethics is preventing you from doing your jobs.”
But the ethics office wasn’t only meant to enforce; it is also there to educate. One of the office’s most popular publications, Thompson noted, is called “How To Keep Out of Trouble.”
“This handbook answers, with unusual directness, the question: ‘Can You Gamble While on Duty?’ The answer, in case there is any doubt, is: ‘No,’” Thompson wrote.
The Reagan Administration didn’t think much of the office and, in general, was wary of everything leftover from the preceding Carter presidency. At the time, the ethics office was part of the Office of Personnel Management, the director of which was so skeptical of the need for ethical controls that Congress, fearing his unruly influence, actually made the ethics office its own independent agency. (Evidently, by then, Congress’ nervousness over the office’s role had abated — at least enough for them to want to ensure its independence.)
George H.W. Bush, however, took a very different tact. On the day of his inauguration, in 1989, Bush apparently felt strongly enough about ethics that his first executive order created the President's Commission on Ethics Reform. This commission eventually led to another executive order, which, Gilman wrote, for the first time ever, established ethical standards for the entire executive branch. (Whereas, in 1978, agencies were instructed to set their own ethical rules, this order set it for them.)
Each president after Bush would issue his own executive order, most attempting to one-up the administration before it, battling for the moral high ground. President Clinton shut the “revolving door” on government officials leaving their posts for lobbying jobs. President Obama shut the “reverse revolving door” on lobbyists leaving their posts for government jobs.
Even President Trump has issued an ethics executive order, which is quite similar to Obama’s — often using verbatim language — except for a few key differences, Clark said.
“It’s not cut and pasted very well,” she said.
Like Obama’s order, Trump’s allows for so-called ethics waivers, which can excuse officials from the ethics pledge. Obama, however, “laid out narrow criteria where waivers could be issued,” Clark said. Trump’s has no such criteria — a detail that allowed for the sweeping waivers he issued last month.
Photo by Michael Vadon, Wikimedia Creative Commons
President Trump speaking at the Laconia Rally in New Hampmshire.
“The point of it is to make it sound to someone who isn’t listening closely like he’s draining the swamp,” Clark said. “It’s the appearance of ethics rather than actual ethics.”
And for two attorneys general, 200 members of Congress and an ethics watchdog — all of whom have filed lawsuits against the president — the appearance of ethics is not enough.
“This is an action against Donald J. Trump in his official capacity as President of the United States,” reads the first sentence of the suit filed by the attorneys general of Maryland and the District of Columbia. “The case involves unprecedented constitutional violations by the President.”
And the Constitutional provision Trump is said to be “flagrantly violating”? The Emoluments Clause.
Much has been written about this lawsuit (and others) and Trump’s clashes with the Office of Government Ethics and its outgoing director, Walter M. Shaub Jr., but mentioned less is the importance of these laws, their history and the people who enforce them, said Mark Morodomi, a longtime ethics official for the California Fair Political Practices Commission and the city of Oakland.
“In government, there are so many competing pressures,” Morodomi said. “It’s very easy to ignore someone who says, ‘Oh, this is what the ethics law says.’ But in the long run, they’re not technicalities.”
In the latest shock to the system, Shaub, a longtime public servant who was the loudest and scrappiest defender of the ethics code, resigned, citing the Trump administration’s “heartbreaking” disregard for ethics rules.
In an interview with NPR’s “All Things Considered,” Shaub said he stepped down six months before his term was to expire because, simply, there was nothing left for him to do. “I’ve made as much a difference as I can in this job,” he told NPR.
Shaub, who has worked in the ethics office since the George W. Bush administration, has already accepted a position with the nonprofit Campaign Legal Center, where, he said, he will advocate for ethics reforms at all levels of government. For Shaub, the Trump administration poses a grave threat.
“We’re talking about abandoning the norms and ethical traditions of the Executive Branch that have made our ethics program the gold standard in the world until now,” he said.
At the end of the Constitutional Convention in Philadelphia, two years after he had returned from France with his treasured diamond snuff box, a woman reportedly approached Benjamin Franklin and asked, “What have we got, a republic or a monarchy?”
“A republic,” Franklin shot back. “If you can keep it.”
Every ethics scholar and expert cited here would say that ethics laws — from Plato to Trump – are key to keeping it.
A note to readers: This article does not profess to cover every important date or scandal in a legal history that is longer than that of the United States. We couldn’t, for example, cover the fertile ground of the Supreme Court’s decisions in Buckley v. Valeo or Citizens United v. FEC, the aftermath of which Teachout calls the “New Yazooism.”
For further reading, we recommend the following books and articles: “Corruption in America” by Zephyr Teachout; “Bribes: The Intellectual History of a Moral Idea” by John T. Noonan; “Presidential Ethics and the Ethics of the President” by Stuart C. Gilman; and “White House Ethics: the History of the Politics of Conflict of Interest Regulation” by Robert N. Roberts.