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[Richard Painter, guest-blogging, March 24, 2009 at 11:48pm] Trackbacks
Want That $21 Hamburger? You Can't Have It. But . . . :

My third post goes to the heart of what my book is about, the fact that federal ethics regulation focuses too much on that which doesn't matter and too little on that which matters.

Executive Branch employees, for example, cannot accept gifts worth more than $20 from so called "prohibited sources", although there are numerous exceptions to this rule including gifts from personal friends, attendance at widely attended gatherings (WAGs), gifts of politically related travel, gifts of official travel, and more. If I were to send a copy of my book (some of you have already pointed out what that costs) to a member of the White House staff who was not my personal friend, it would be sent unread to the federal government's gift warehouse. The warehouse I understand contains everything from Rolex watches given to U.S. intelligence officials by the Saudis to a wine collection. The federal gift rules meanwhile are exceedingly complex, making many ethics officials yearn for some of that wine to accompany their well worn copy of the Code of Federal Regulations. With the exception of the wine, and perhaps some of the watches, however, almost everything in the warehouse is stuff that nobody wants anyway, and stuff that even if accepted in violation of the gift rules would not have affected performance of official duties.

The gifts that really matter are more loosely regulated. Campaign contributions and private sector employment opportunities are chief among them. True, there are limits on individual campaign contributions, but that is where bundling of contributions comes in, and in any event unlimited amounts of money can be given to 527s and other special purpose entities (SPEs) that do what political campaigns also do (attack an opponent, promote an agenda, educate the electorate, etc.) As for post-government employment, here too there are rules, such as the prohibition on participating personally and substantially in an official matter that has a direct and predictable impact on an entity with which you are negotiating for employment. 18 U.S.C., Section 208. These rules also are easy to evade.

Consider the following conversation:

"Treasury Official: You said you need some bailout money. Is $20 billion really enough? Don't you think you need 30?

Investment Bank CEO: I'll take 30, although $40 billion would be better. You really ought to work for us someday when you finish at Treasury; I know just the position we could give you.

Treasury Official: My ethics lawyer told me I can't talk to you about that, at least if I am going to participate personally and substantially in this particular matter, which is to give you the $50 billion, or whatever it is you need.

Investment Bank CEO: I understand. All I really meant to say is that we have a lot of talented people like yourself around our firm and that we want to keep them and hire some more. Speaking of keeping the people we have, I hope that $60 billion you are talking about does not come with strings attached that would affect our bonus program.

Treasury Official: Of course not. We made sure the bill Congress passed had a provision that would protect our -- excuse me I mean your -- compensation arrangements."

This smells for sure, but probably passes muster under Section 208.

Solving the problems that really matter -- excessive influence of campaign cash and corrupting elements of the revolving door -- is not easy. I have a few ideas that I will discuss in later posts. My point here is that existing regulation does not come close. Indeed, existing regulation may be a smokescreen that makes government appear ethical while doing little that actually makes government more ethical. If so, could the regulations be doing more harm than good?

Richard W. Painter

Mycroft (mail):
One fix that fell out of favor with actual politicians 80 years ago is keeping the government too small to do the things people bribe them to do.
3.25.2009 12:22am
pmorem (mail):
If you want to take the money out of politics, the only way is to take the money out.

Flipside, any increase in amount of money flowing through government will increase the corruption. I've come to the conclusion that a significant fraction of politicians and bureaucrats actually favor this path.
3.25.2009 12:29am
MS (mail):
Mr. Painter,

These posts are great. Thank you.
3.25.2009 12:32am
PatHMV (mail) (www):
Yes.
3.25.2009 12:33am
Jerrod Ankenman:
Mr. Painter,

These posts are great. Thank you.


+1
3.25.2009 12:41am
krs:
I'm intrigued by this warehouse, which is starting to sound like the duty free shop at the airport.

This is a fascinating subject and I look forward to your ideas regarding campaign cash and the revolving door.
3.25.2009 12:53am
Gulf Coast Bandit (mail):
So perhaps maybe the government should auction off the contents of this warehouse to pay for the bailout.
3.25.2009 1:08am
Dan-not the registered user (mail):
I work for the us govt. and I don't know which is more insulting. The idea that I am for sale, or that the price is a $21 hamburger.
3.25.2009 1:43am
Jonathan F.:
I'm intrigued by this warehouse, which is starting to sound like the duty free shop at the airport.
Yeah, I think you can see a picture of it here.
3.25.2009 2:17am
Dave N (mail):
I want to add to the praise. With no disrespect intended for any previous Guest Blogger, these guest posts have been among the best ever. Keep up the good work and thanks for the great posts.
3.25.2009 2:18am
subpatre (mail):
Dan-not the registered user, you are not for sale since you have already been bought; a statistical truth. That was LBJ's theory behind the 'War on Poverty': bribing a newly enfranchised public to vote for him was good, but wasn't nearly as effective as owning voters in the form of employees. Hence the welfare state.

Mycroft wrote: "One fix that fell out of favor with actual politicians 80 years ago is keeping the government too small to do the things people bribe them to do."

The US government is going to be big no matter what. And there was bribing way, way back when; railroad contracts, Teapot Dome, etc. The moniker 'Uncle Sam' was from corrupt Army food contractors.

The crux isn't necessarily government size, it is government reach. Emminent domain for the RRs, and there are now thousands of ghost railstations. Government concessions for oil and coal. The government has its fingers so deep into agriculture nobody really knows if ag markets will work without subsidies.

We may be expressing the same thoughts, but I say "reach" instead of size because the mantra of smaller government is doomed to fail; the cuts always come to the services that should be provided.
3.25.2009 2:41am
ARCraig (mail):
Corruption is a direct function of the amount of power the government exercises over society. You can slap as many pages of rules and regulations as you want on gov't employees, but the exact same effects of concentrated benefits and diffused costs will plague any system where the only counterweight against the rent-seekers is the (rationally!) ignorant mob lurching in the direction of the demagogue du jour.

Acton had it right. Power corrupts. You can't reduce corruption without reducing power.
3.25.2009 4:21am
Soronel Haetir (mail):
So how do you split the things that do matter from the things that don't?

As the owner of a small retail store, I have distributors provide me with numerous items ranging in value from a few dollars to a few hundred, each of which is an attempt to change either my stocking habits or the purchasing habits of my customers.

While such things may be fine in the private sector I don't want government decisions to be influenced by such considerations. I find travel junkets just as troublesome, where I understand people do re-imburse expenses, but at rates far lower than the actual costs.
3.25.2009 8:02am
BZ (mail):
+1 to the praise. Not only good topics, but good writing. Thanks.

Having said that, I certainly agree that unimportant things are over-regulated and important things are not regulated.

Last night, I read a discussion of lawyers who work in this field, and one of the unspoken messages was that knowledgeable lawyers who actually explain the legal requirements drive their clients into the arms of lawyers who don't know what they are doing, or are willing to push the envelope. Thus, it's not just that these systems are complex, but that compliance is so onerous or counter-intuitive that compliance is deemed a lesser objective than burden-reduction.

Example: FEC logic requires reporting campaign expenditures on an accrual basis even if you are on a cash basis; thus, if you incur an obligation to pay for, say, printing flyers in one reporting period, but pay for it in the succeeding period, you must report the expenditure when the obligation is undertaken (first period), not when the obligation is paid. I suppose that makes sense for the big campaigns (and perhaps from a disclosure standpoint), but for the little ones, not so much. It means you need an accountant, not just a lawyer, to handle campaign finance. Yet, as you note, 527s and SPEs are quite free to do quite a lot of unregulated substantive work.

Since we all work very hard to find the loopholes in any regulation, and political/rent-seeking money flows like water, it's often a race to the bottom. Ending perhaps in George Soros-type people who say: "I don't care. Let them come after me and I'll worry about it then." And it's the same for regulators, who worry that if Congress was not painstakingly explicit, they cannot regulate strictly for fear of courts (both judicial and media). I think the new Administration is starting to understand those fears as well, though the new proposed powers to take over companies (not just banks) which might "endanger" global finance are breathtaking.

It isn't just the White House or even the federal government, though. Just starting a new business in any locality or state often requires dozens of different regulatory and taxing agencies, most of whom require their own separate actions, even when they have "combined registration" forms and the like.

Thus, how does one of the most pervasive and powerful entities in society rise above what every part of society already imposes? Or, to put it another way, I eagerly await your future posts on possible solutions, recognizing the old Japanese proverb that the nail which rises above the others is hammered down.
3.25.2009 9:05am
Ron Miller (mail) (www):
That's the problem. Is it silly that a $20 book more closely regulated than a $2,000 check? Of course it is. But the problem with all rules is that they are not narrowly tailored to the facts of every case. That conversation you manufacturered is a good one. I'm sure it happens all of the time (and in other conflict contexts in other regulated businesses all around the country... and the world).

There are no easy answers to these problems. I agree peopel should be looking for - and testing solutions.
3.25.2009 9:22am
Commentor (mail):
How is it that Mr. Lindgren's posts do not seem to allow comments? Am I missing something?
3.25.2009 9:26am
Attila (Pillage Idiot) (mail) (www):
If recollection serves, Sen. Glenn, one of the Keating Five, who received about a quarter million from Keating, insisted that there was no problem because the contribution had no effect on his actions as senator. But government employees can be bought for a $21 hamburger.
3.25.2009 9:50am
zywotkowitz:
True, there are limits on individual campaign contributions, but that is where bundling of contributions comes in,


And don't forget about intentionally broken campaign websites that enable "Manchurian corporations" to donate millions of dollars under made up names like "Doodad Pro".
3.25.2009 10:00am
Curt Fischer:

How is it that Mr. Lindgren's posts do not seem to allow comments? Am I missing something?


No, the work of moderating the comments has become too much for some of the conspirators to bear, some of the time. Orin Kerr, I think, announced that he would close comments on posts he felt were likely to attract spammers and trolls. Randy Barnett announced he would be turning off comments on all of his posts. I don't remember Jim Lindgren announcing a specific policy.

You can use the http://www.volokh.com/?exclude=jim trick to render Mr. Lindgren's comments invisible to you. That seems pretty heavy-handed, though.

I wonder if there is some trick that we could use to exclude posts with comments turned off? I would love that one. http://www.volokh.com/?exclude=commentsoff or something?
3.25.2009 10:16am
Daniel Chapman (mail):
It doesn't surprise me that they're turning off comments, but it bothers me that the ones giving up are the ones that the trolls bother the most... DB has been done with comments for quite a while I've noticed.

Unfortunately, comment quality goes down in direct proportion to the number of hits and links a page gets. It's a doomed experiment unless they want to go to some sort of system where only special people get commenting privileges... end anonymous commenting, stop letting people sign up for drive-by comments, etc.
3.25.2009 10:50am
Daniel Chapman (mail):
As an aside, you seriously wouldn't read posts that don't allow comments? You think the comments are worth more than the original posts? Wow. Perhaps you think you're punishing them or something?

You have some odd priorities, sir. I half wish I could just turnthe comment sections off. Half the time I can't help clicking on them, and they're rarely worth reading. I used to post all the time when they first turned comments on, now it's embarrassing.
3.25.2009 10:56am
Soronel Haetir (mail):
I think Prof. Painter's posts have been a perfect example of why comments are worth at least as much as the original post. Without the comments to draw out specific ideas the first post on each topic would be fat from satisfying.

What amazes me about the changes in comment habits is how much was tolerated during the election run-up. It would have made much more sense if comments had been disabled then and re-openned afterward.
3.25.2009 11:02am
One Man's View:
Back in 1995 when the House was considering many ethics reforms, then Representative Wayne Gilchrest took to the floor in opposition to the $20 lunch limit. He asked two questions that still resonate today: "Do my constituents really think my vote can be bought for a $21 hamburger? If so, they shouldn't have elected me." And "Do they really think it is the hamburger and not the $10,000 campaign contribution that influences a vote?" That's why he didn't take campaign contributions.
3.25.2009 11:31am
Sk (mail):
"As an aside, you seriously wouldn't read posts that don't allow comments? You think the comments are worth more than the original posts? Wow. Perhaps you think you're punishing them or something?"

I do. Frankly, a blog post is a pretty light, ill thought out, poorly conceived thing (by design. I'm not judging, I'm describing). For an academic blog, its probably the rough draft of a rough draft (at best).

Comments range from interesting and on topic to boring, off topic, and even insulting. But the comments are the appeal of a blog. Without a conversation, there's no appeal. Without comments, a blog is just a diary. I have no interest in reading someone's diary*.

*There's an exception. If they are very short, kind of interesting, but don't take too much effort (for instance, Instapundit), I read them. But I don't invest much energy in it, and don't take it particularly seriously-kind of like a top ten list, or a graph in USA Today, etc.

Sk
3.25.2009 11:37am
Curt Fischer:
David Chapman, Many of the posts here are on topics I know very little about. Sometimes these topics are very arcane, technical, and in the poster's area of expertise. I generally defer to the poster's authority in cases like that. I usually can't understand the original post or the comments very well in cases like these.

Other times the topics are not in the poster's area of expertise. For a subset of posts with these topics, sometimes claims or inferences are made, which I usually cannot be bothered to look up or check. But, if that post has comments, there's a good chance some commenter will have checked the claim or challenged the inference.

I like to read comments for that reason. Sometimes I find the commenter's arguments against the original post weak; other times the commenter's arguments seem quite compelling. In either case, I wind up better informed about a particular topic because I read the comments. I'm willing to read through quite a lot of content-free crap comments to wait for the good ones.

One dynamic I worry about is whether disallowing comments will incentivize the Conspirators to be more daring, reckless, or inflammatory in their posts. Sure, I understand that moderating out the crap is a lot of work, and I don't think Conspirators are consciously turning off comments to avoid putting their claims to critical scrutiny, but nonetheless the incentive is there.

In sum, I find debates and discussions of topics to be far more educational and engaging than monologues, and I strongly prefer posts which allow comments as a result.
3.25.2009 11:39am
RPT (mail):
Mr. Painter's posts are excellent. The explanation to Messrs. Lindgren's, and now Adler's prohibition of comments may be that it allows for the posting of increasingly hyperpartisan,lame and silly comments without clarification of rebuttal. No one can talk back. For example, a tirade about "how to pronounce "Orion"???????" In addition, the lack of comments on these posts causes a spillover onto other threads, like this on.
3.25.2009 11:48am
Daniel Chapman (mail):
That's just uncanny... how does someone call me by my brother's name IN TEXT?
3.25.2009 12:04pm
Commentor (mail):
Regarding commenting, this site might want to look at the system used by Slashdot, which is in a sense, moderated by the readers of the comments, themselves.
3.25.2009 12:12pm
Daniel Chapman (mail):
They use the +/- community moderation system, right? Posters lose privileges if they get too many negative votes within a specific time period?

Yeah it's great, but sometimes prone to abuse. Not that I think abuse would be a problem here.
3.25.2009 12:15pm
Snaphappy:
So I was about to buy the book when I discovered that the list price is $65 with a discount only to $52 on Amazon. What gives? I would expect this book to cost roughly half that.
3.25.2009 12:23pm
Dilan Esper (mail) (www):
How is it that Mr. Lindgren's posts do not seem to allow comments? Am I missing something?

I suspect it is so he can post ahistorical claims about unions being the cause of the Great Depression and capital gains tax cuts being the solution, and nobody will be able to rebut him.
3.25.2009 1:19pm
Curt Fischer:
I'm sorry Daniel! Please accept my apologies.
3.25.2009 1:26pm
David M. Nieporent (www):
I work for the us govt. and I don't know which is more insulting. The idea that I am for sale, or that the price is a $21 hamburger.
That was the argument made by Scalia in refusing to recuse himself because he had been hunting in the same expedition as Dick Cheney: if that's actually enough to buy me off, we've got bigger trouble than whether I recuse myself.
3.25.2009 1:51pm
David M. Nieporent (www):
Mr. Painter's posts are excellent. The explanation to Messrs. Lindgren's, and now Adler's prohibition of comments may be that it allows for the posting of increasingly hyperpartisan,lame and silly comments without clarification of rebuttal. No one can talk back. For example, a tirade about "how to pronounce "Orion"???????"
Tirade? I don't think that word means what you think it means.
3.25.2009 1:55pm
Thoughtful (mail):
"One fix that fell out of favor with actual politicians 80 years ago is keeping the government too small to do the things people bribe them to do."

Sadly, now the government is viewed as too big to fail...
3.25.2009 2:01pm
pmorem (mail):
Sadly, now the government is viewed as too big to fail...

With the possible exception of space-time, nothing is too big to fail.

There's a Black Swan in the last room of the Hilbert Hotel.
3.25.2009 7:13pm
Brian K (mail):
How is it that Mr. Lindgren's posts do not seem to allow comments? Am I missing something?

I think he got tired of being called out on some of the idiotic things he says.

there are two solutions to this problem: 1) don't write posts making ridiculous and easily falsified statements or using very poor logic or 2) turn off the comments and pretend the problem is the commenters and not the original posting. lindgren obviously chose the latter.
3.25.2009 9:54pm
RPT (mail):
"Tirade

Definition: A declamatory strain or flight of censure or abuse; a rambling invective; an oration or harangue abounding in censorious and bitter language."

That pretty well describes Lindgren's recent posts.
3.26.2009 1:08pm

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