Editor’s Note: In September of this year Visiting Fellow Norman Eisen was featured in the Council on Government Ethics Law (COGEL) members-only magazine, The Guardian. An abbreviated version of his interview is featured below.
Interview conducted by Wesley Bizzell, Assistant General Counsel, Altria Client Services LLC.
Recently, you addressed the Italian Parliament to discuss ethics in government, as that legislative body considers adopting its own code of ethical conduct. In that speech, you noted you believe there are four key concepts at the center of Federal U.S. ethics laws. What are those four concepts and why they are important?
Firstly, I’d like to note the importance of focusing on four concepts. The House of Representatives Ethics manual is 456 pages long; too long to be of any real use in creating an ethics system. Instead, these four principles serve as a foundation upon which different governments can build their own sets of rules based on their own unique needs.
I focused on just four to make a point about priorities. The first is “conflicts”—that is, problems that arise when an individual’s personal interests and parliamentary duties may be at odds with one another. The second is “gifts”. Even if there isn’t an explicit quid-pro-quo style agreement involved, when a political figure accepts a gift from someone with a demonstrated interest in government decision-making, the suspicion of misconduct will always be there. “Revolving door” is the third core concept. When individuals rotate from the private sector to the public sector over and over again, they are naturally going to form relationships that tempt them toward unethical behavior. Finally, “use official resources.” Officials must be careful to use official resources only for official purposes, being particularly careful not to conduct any campaign activity on the taxpayer’s dime. The goal with these four priorities is not only to keep people from behaving unethically, but also to make sure it doesn’t seem like anyone is doing anything unethical either.
In that speech, you said that focusing on these four areas keeps you from losing the forest for the trees when working with ethics codes. Can you elaborate on that?
There’s always a danger for members of the executive branch, because the system of rules and regulations that governs ethical behavior is itself so complex. When it’s imbedded in equally complicated and overlapping sets of statute you risk creating rules so specific that they’re practically useless. The same is true in the legislative branch and I dare say in the federal judicial branch, as well as at the state and local levels. You’re always on the edge of being lost in the minutiae.
In fact, you can often make wrong decisions if you focus in too much on the specifics, because you lose sight of the larger picture that guides the rules. There are always options in ethical dilemmas, and the big picture needs to be kept in focus.
While at the White House serving as Special Counsel to the President for Ethics and Government Reform you oversaw numerous significant changes in the area of open government—including helping craft and implement President Obama’s Open Government Directive; publishing White House visitor logs on the internet; and generally improving the Freedom of Information Act (FOIA) process. What change in the area of open government are you most proud?
I was struck when we began the interview by the list of topics—campaign finance, lobbying, ethics, elections, and FOIA issues—because all of those were part of my portfolio as Special Counsel to the President for Ethics and Government Reform during the first two years of the Obama administration. I would have to say that I’m most proud of my role in the President’s decision to put all of the White House visitor records on the internet.
Remember, in previous administrations, Democratic and Republican alike, plaintiffs had to litigate for years just to get a handful of visitor records. To have all of the visitor records on the internet, categorized into various types, opens access to the White House to an unprecedented degree. There are now over four-and-a-half million visitor records available on the White House website, with more added every month. I think that that is remarkable.
Truthfully, I was torn between that accomplishment and a second one, which is that the President and his staff in the White House have had the longest run in presidential history (knock on wood) without a major ethics scandal or a grand jury investigation, indictment, or conviction. I was tempted to list that second fact as the accomplishment of which I was most proud. But it occurred to me that the death of White House scandal is actually a function of the exceptional level of transparency that the visitor records represent. Transparency helps ensure people don’t have meetings they shouldn’t be having, which keeps them out of trouble. So I’ll offer that second accomplishment as a part of the first one.
In your view, what was the most significant lobbying and ethics reform during your tenure at the White House?
No doubt about it: reversing the revolving door. Craig Holman of Public Citizen, who studies these issues, says we were the first in the world to create a reverse revolving door. I think it is absolutely critical to slow the revolving door in both directions—both coming out of government and going in.
I should also note that the comprehensive nature of the ethics system we put into place in the Obama administration bears a responsibility for the good results. The first rule, of course, of any ethics system is “tone at the top.” The president exemplifies that. He has the highest standards of ethics himself, and as a result everyone around him feels he will be personally let down if they don’t embrace the ethics system. Good results flow from that. Looking back, we can identify certain aspects that have more and less successful, but it’s important to recognize that the positive results are owed to the gestalt. Our transparency and ethics system was one of the most through and transparent that I’ve seen in any government, and the result speak for themselves.