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Ethics at Work: Ethics at the expense of democracy
Asher Meir
02/08/2007
Trying to force the draft Ethics Code on actual legislators in a functioning democracy is a mistake that threatens to hamper the functioning of the Knesset.
Two weeks ago we began discussing the proposed new code of ethics for Knesset members. There is no question that a new code of ethics is desirable, since currently there is only a bare-bones code, which while good in itself needs extension and clarification. But the draft recommended by the Zamir commission is lacking in several respects. In the previous column, we criticized the fact that this document, which is meant to regulate the ethics of Israeli democracy, itself suffers from a deficiency in the democratic process, insofar as it was not drafted by the Knesset members themselves but rather by an outside committee (strike one) of mostly jurists (strike two). Only three of the nine members are Knesset members, and only two are current members who will actually be subject to the code. When codes of conduct are drafted by outsiders, they tend to lack relevance, and even if they are well-drafted they tend to suffer from a lack of legitimacy and acceptance, which is profoundly counter-productive. This week I would like to discuss more substantive difficulties with the code - the main problem is that it is too ethical. To be more precise, it embodies a very enlightened ideal of what the political system ought to be doing, which is very far from being what it actually does. Thus, its provisions will tend to hamstring the actual functioning of Israeli democracy. Politics in a representative democracy is an adversary process, with different parties pursuing differing and conflicting agenda. The most cynical view of this process, the one favored by economists, is that these competing groups represent competing interests. Thus, a representative from San Francisco (like Nancy Pelosi) should favor tweaking the minimum wage law (by exempting American Samoa) in order to help out a San Francisco corporation (like Starkist). However, since there are many competing groups, no group can impose its interests on others and the need for consensus tends to bring about a mutually beneficial outcome through a political parallel to the "invisible hand" of the market. The most exalted view - the one favored by ethicists - is that these competing groups represent competing visions. Meretz believes that a more conciliatory approach to the Palestinians is to the benefit of all Israelis, not just Meretz voters; the National Union believes, likewise, that a more hard line approach is good for all, not just for their constituency. Of course, the actual truth is somewhere in between, and the line is blurry. Conflicting interests often manage to join forces only under the rubric of some joint "ideal," and very often ideals and interests overlap; of course a hard line is beneficial for settlers, but many of these people became settlers in the first place because they believed in an unyielding stance towards Palestinians. The ethics code drafted by the Zamir commission aggressively adopts the more idealistic version. So much so, that the classic interest politics we all recognize is virtually delegitimated. Politics as it is actually practiced throughout the world and throughout history has been redefined as an actionable breach of ethics. Did you think the first responsibility of an elected representative is to defend the interests of his or her constituency? It is in England. Their code of ethic states: "Members have a general duty to act in the interest of the nation as a whole, and a special duty to their constituents." This formulation accepts that all legislators are representatives of the nation, but highlights their special responsibility to their constituents. In the US, the ethics code for legislators makes no mention of any general responsibility to the public. The Zamir commission, by contrast, seems to be terrified of the prospect that representatives may work to advance the interests of voters. Here is how they couch this duty: "A Knesset member . . . shall fulfill the obligation placed upon him, as a trustee of the public, to represent the community of his voters in a way that will serve human dignity, social progress, and the good of the State." Before you are allowed to represent your community, you have to be a trustee of the entire public; after you undertake this task, you have to limit yourself to those activities that serve "human dignity and social progress." Who is supposed to decide what human dignity and social progress are, if not the voters through the democratic process? Perhaps these should be dictated by the ethics ombudsman, nominated by an outside committee? Here's another example. It is common for ethics codes to regulate conflicts of interest. In the US, this is defined as "seeking private gain from public office." In the UK, it is "any relevant pecuniary interest or benefit." How are these conflicts regulated? Through transparency, by a disclosure requirement. The US code is emphatic that conflicts of interest should not prevent a representative from carrying out his duties: "A Member may often have a community of interests with his constituency, may arguably have been elected because of and to serve these common interests, and thus would be ineffective in representing the real interests of his constituents if he were disqualified from voting on issues touching those matters of mutual concern." And farther on: "Members of Congress frequently maintain economic interests that merge or correspond with the interests of their constituents. This community of interests is in the nature of representative government, and is therefore inevitable and unavoidable." The Zamir commission draft goes way beyond this. First of all, disclosure is not enough. A Knesset member would actually be disqualified from taking part in committee votes on issues where there is a conflict of interest. Extending the disqualification for a conflict of interest could possibly be defended if the definition of conflict were narrowly circumscribed, but the opposite is true. The Zamir commission provides an audacious new definition of conflict of interest that includes an "institutional conflict of interest." This refers to "an interest the Knesset member has in the functioning or success of a public or private body that the Knesset member is connected to." If Knesset members are not supposed to promote the interests of public and private bodies they are connected to, what are they supposed to do? Presumably they connected themselves to these bodies in the first place because they believed they advanced the interests of their constituencies! Another audacious provision is to require Knesset members to disclose any contact they have with lobbyists. Lobbyists are one of the most important means legislators have to communicate with their constituents; revealing exactly which lobby expressed an interest in exactly which bill would paralyze legislators. A good politician must be an astute negotiator, and it's impossible to conduct effective negotiations if all your motivations have to be revealed to your negotiating partners. The visions of an ideal society expressed in the draft Ethics Code for Knesset members are enlightened and elevated. But trying to force these enlightened and elevated ideals on actual legislators in a functioning democracy is a mistake that threatens to hamper the functioning of the Knesset and limit the ability of members to advance the interests of their constituents. The writer is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute in the Jerusalem College of Technology. ethics-at-work@besr.org
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