A potlatch is a competition once found among tribes in the American Northwest. Contestants took turns destroying things of value to them to demonstrate their wealth and status in the community, and overtime the combat escalated until eventually the only way to win was to reduce oneself to material ruin. In a 1964 essay Stanford Law School Dean Bayless Manning, a member of the President’s Advisory Panel on Ethics and Conflicts of Interest in Government, compared the then current race in Washington, D.C., to condemn conflicts of interest to a potlatch – with similar unfortunate consequences. Given the conflict of interest mania now gripping Washington, D.C., the time seems right to resurrect Dean Manning’s largely forgotten classic on the perils of ethics overstretch. “The Purity Potlatch: An Essay on Conflicts of Interest, American Government, and Moral Escalation” appeared in volume 24 of the Federal Bar Journal. Available nowhere online, excerpts follow. The emphasis are as in the original:
“Something dramatic has happened of late to the subject of conflicts of interest. This formerly obscure topic has become front page news and Big Politics. . . .
“The significant feature of these nation-rocking exposes is that, so far as is known from the record, none of the men involved actually did anything demonstrably injurious to the public treasury or the public interest. None figured in an alleged Teapot Dome or anything resembling it. The charge was only that the combination of their economics circumstances and their offices did not look just right. The worst allegation that could be made against them was that they held an economic interest or received gifts that might, upon a certain set of assumptions about the conduct of their office and about human nature generally, tempt them in the future to act contrarily to the public interest in certain limited situations.
“Now, that would seem to be pretty pale stuff for a populace hardened by frontier history, TV, and the drugstore magazine rack. . . . Yet in our present political environment it is enough to force even the mightiest from office. Today all tremble at the charge of ‘conflict of interest.’ . . .
“In matters touching public morality we are inflation-prone. . . . Like bomb-rattling, virtue-rattling escalates. To permit a moral march to be stolen on you is exceedingly dangerous. . . . When the ante goes up, one must at least match it. In a somewhat different form, the same process may be seen at work in the practice of the Armed Services Committee to require Defense Department appointees coming before it to dispose of their stockholdings in companies doing business with the Pentagon. The rule is announced as an Absolute Principle . . . a small shareholding is treated as being as offensive as a major one. No senator is anxious to take a public stand in favor of anything less than Absolute Principle – however small the practical risk involved might be. . . . There is considerable evidence that no one on the Committee likes the situation, but no one knows how to change it. This political susceptibility to moral escalation explains in part our present national fascination with conflicts of interest.
“[Thanks to ever more stringent controls on public spending, bribery and other forms of outright dishonesty are rare.] How can the Outs convincingly demonstrate the perfidy of the Ins [under these circumstances?] If the facts will not make out a case of moral deficiency by accepted standards, the standards must be escalated to a point where facts can be found that will make out a deficiency. . . .[I]f instances cannot be found where an official has diverted public moneys to his own pocket, coals can be heaped on the head of the official who might someday be tempted to divert public moneys to his pocket because his personal economic interests and those of the government might someday conflict. In the public mind . . . a government official in a position of conflicting interests is a kind of a crook.
“Conflicts of interest have become a modern political obsession in this country, first because America politics is highly susceptible to morality escalation and, second, because we are living in an era of unparalleled honesty in in public administration when we can afford the luxury of worrying about public harms before they happen.
“Is not this general rise in the government morality table a fine thing? Is it not symptomatic of progress that our society has brought under control the most flagrant forms of public fiscal abuse, such as bribery, and is moving on with increasingly sensitized moral nerve-ends to become aware of and deal with less blatant improprieties such as conflicts of interest? . . .
“Before we push ahead farther on our ride up the moral escalator, we should ask what the fare is. . . . There is no satisfactory way of measuring just how much of a deterrent to federal recruitment is generated by the present system of conflict of interest restraints. But the general effect is undeniably negative.”
“[I]t is very doubtful whether significant marginal gains in the morality of official behavior can be expected from further increases of regulation in the field of conflicts of interest. The reason is that these restraints are no longer really designed to affect substantive behavior. They are now in large measure ritualistic, in keeping with the Morality Play of which they are part. . . .
“The Nineteenth Century statutes we now classify as conflict of interest laws were . . . closely focused legislative efforts to control actual frauds in the prevailing contracting and claims process – frauds that were visible, recurrent, widespread, and costly. . . . [T]hose who demand further regulation today almost never seek to demonstrate either (i) that there is substantive misbehavior going on, or (ii) that tightening of the conflict of interest restraints would improve the situation. . . . [A] question of human dignity is eventually brought into issue as regulations pile up in the name of Morality.
“A man of the stature to assume high public office should not be presumed to be a crook or a weakling or a fool. His conduct may in time convince us that he is one or more of the three, but the conclusion should not be presumed. . . . In an orgy of virtue, we seem to lose our grip on decency. Confidence gives way to suspicion. . . . It is outrageous to demand that the President of the United States dispossess himself of his personal interests in order to demonstrate and announce to the world that he is ‘clean.’ One may wonder whether the cause of Morality in government is furthered by a national psychology that would have demanded of President Washington that he dispose of Mount Vernon on the ground that issues of slavery and tobacco might come up during his administration. The best way to make a man trustworthy is to trust him. And the best way to attract men of dignity to public office is to treat them as men of dignity.
“[W]e need constant reminding that it costs something to get something. The public has no idea that each extension of conflict of interest restrictions is being paid for by exacerbating the problem of drawing skill and leadership into government. . . .Men are often evil or weak or both. And purity in politics is a splendid ideal. But any one ideal pursued singlemindedly will eventually collide with another equally valid. The art of ethics (and politics) lies in the continual search for balance points that are for a time within a range of operable tolerances, as seen from the perspectives of diverse ideals that, in the circumstances, clash. . . . [T]he need for public confidence in the ethical quality of government must be weighed against a good many other considerations that argue for caution in imposing more restraints on officials in the name of morality. It is very difficult for men in American political life to approach the conflict of interest problem in this vein, to speak to their publics in other than moral absolutes. But the public deserves to be informed, and we may hope that there will be men in high office who will have the insight, courage, and political security to resist unlimited moral escalation and the purity potlatch.”
It is a sad commentary on American political culture that, with the single exception of a former student of Dean Manning’s now serving as governor of California, no political leader has come forward to question the constant moral escalation in politics. The failure to slow this escalation might perhaps explain why in election after election Americans express such dissatisfaction with the candidates they are asked to choose from. In any event, the purity potlatch, it seems, is here to stay.