Speeches and Writings
"Leadership and the Ethical Challenges of Government"
Transcript and Extension of Remarks by Dave Frohnmayer
President, University of Oregon
Attorney General of Oregon (1981-91)
At the Conference of Western Attorneys General
July 28, 2002
Dave Frohnmayer, President
University of Oregon
Introduction by Hon. Hardy Myers, Attorney General of Oregon, and President, Conference of Western Attorneys General
When one seeks to sum up a truly remarkable life like Dave Frohnmayer's, I for one am drawn to a couple of over arching observations. One is that it has been a life of unbroken and clear-sighted work on behalf of interests greater than Dave himself - on behalf of the wider public interest - and it has been a life of unbroken personal excellence: Harvard College, magna cum laude; Rhodes Scholar; J.D. from Boalt Hall; three times elected Oregon Attorney General with a record of service that I think is universally regarded as the finest in our State's history; six successful arguments before the Supreme Court of the United States; President of the National Association of Attorneys General; recipient of the Wyman Award; election to the American Academy of Arts and Sciences; Dean of the University of Oregon School of Law; and, since 1994, President of the University of Oregon. And throughout this career, Dave has created an ever-growing body of respected writing in many different journals, primarily on law and government, including some of the most important writing on the role of the organization and the work of the modern state attorney general in the United States.
But along side these many achievements has also unfolded the story of Dave and Lynn Frohnmayer's courage and resolution in the face of Fanconi anemia, which has cast its deadly shadow over the Frohnmayer family. Dave and Lynn's unswerving and even defiant response to this challenge has probably been the most inspiring personal story in modern Oregon history. Certainly it is the most inspiring story I have known as an Oregonian. The Frohnmayers' response has led to the formation by them of the Fanconi Anemia Research Fund in Eugene and the formation of the National Marrow Donor Program. And Dave and Lynn have been justly honored by receipt of the Albert D. Sabin Heroes of Science Award for Americans for Medical Progress-Educational Foundation. In sum, I think it remains only for me to say that I think Dave Frohnmayer is probably Oregon's most distinguished public servant in active public life. It has been a genuine personal privilege to know him in friendship for many years, to have shared public service with him, and to be a successor of his as Attorney General of Oregon. And of course it is a very great honor to present him to you this morning. Thank you.
Thank you very much, Hardy, for the generosity of that introduction. Hardy and I have been both close friends and collaborators since we entered the Oregon House of Representatives twenty-seven years ago, in ancient times back in 1975. I had thought of myself as a recovering politician on about the eleventh step until I returned yesterday to this association. For example, I really did think my public life had ended last week when I called Hardy's office asking for him. When asked my name, I said, "Frohnmayer," and she then asked "how do you spell that?" I knew it was all over.
But now to return in your midst and know the power and glory of the office - to experience it vicariously once again - is quite overwhelming. You are all "generals" honestly and by right of office, and you didn't (as I didn't) even have to go to boot camp or ROTC. I then remembered even back to my early days in office in the 1980s. I received a post card (this is actually a true story), one of those things that a public office holder loves to get, written in hand-scrawled pencil. It said very briefly "Dear Chief Lawyer of Oregon, please inform me when you have restored law and order to the State of Oregon." It was signed with a return address of General Delivery, Pocatello, Idaho. (laughter)
I have this image of an anxious expatriate ready to come back from Baja Oregon if only I were to do my official duties. (laughter) So those really were great days and I, as many other recovering former attorneys general, am here to tell you that it is the best job I ever will have held.
I was asked to talk this morning on a very broad topic. It is one in which I have practiced and read. In the academic world I now inhabit, I have reflected more deeply upon the issue of ethics in public service. Every year I teach a freshman seminar to 25 young men and women who are unsullied by the veneer of cynicism that some times affects college students midway through their careers. We explore each year a topic called "theories of leadership," and the issue of ethics and ethical behavior plays a prominent role. I address my remarks today to these deeply inter-related subjects.
In the brief time that we have together, I propose daringly, maybe even pretentiously, to talk about four different levels of leadership and leadership theory; the relationship of these levels to ethical behavior; some of the characteristics of admired leaders; the societal challenges of engaging in ethical behaviors; the special dangers and challenges of politics and political involvement; and, finally, why ethical behavior in public life may be different or more difficult than that in other endeavors. I call this last question, generically, "the problem of Machiavelli."
In addressing these topics, I will point to six new challenges to public service, three arenas of ethical debate in which you as attorneys general may be asked, if you have not been already, to lend your voices and your thoughts, and then will offer concluding comments on the role of the attorney general. That's a long menu to digest, and so I apologize in advance if it seems a daunting way to spend a morning.
II. The Four Levels of Leadership
Very early in my career as attorney general, a wise person who actually goes by the nom de plume of his own choosing as the "Black Prince," described to me four levels of leadership and the levels to which I might aspire, if I chose, as attorney general. With some of my own embellishments and thoughts over the years, I found the analytical model actually to be profoundly useful. It is useful not merely to a person who has had a leadership position but also to a consumer of leadership and to an observer of how it is exercised.
A. The Brute Force Model
The Black Prince argued that all leadership can be subsumed under one and only one of the four different styles of engagement with others. The first one of these styles is leadership by brute force. That is to say, "You do what I tell you to do or I will hurt you!" Hurting someone does not obviously need to be by physical force. It can be some form of sending one to Coventry; it can be shunning, it can be negative comments, it can be creation of adverse salary consequences, or it can be classic behaviors that I actually now watch for with great amusement in the comic strip, Dilbert. If you want someone to react, a great many people may say, almost instinctively, "I want you to do it my way or something bad will happen to you."
The problem with that leadership practice, common though it may be in the corporate and political worlds, is that it is extremely inefficient. What is your first reaction when you are told that if you don't do something you will be hurt? It probably is "you s.o.b. you better sleep with one eye open because I will hurt you back." And so as a consequence, to get the behaviors that you want, you need to stay awake 24 hours a day. (laughter)
What is worse, you will get minimal performance. You will get just the extent of performance that you commanded and nothing more. There is no reciprocity between the leader and the follower; there is nothing in it for the follower other than the avoidance of pain. And the primary emotional mode that governs relationships in this form of leadership is fear.
So, not too surprisingly, most organizations do not last very long or they don't hold their employees very long or even their volunteers very long if they are non-profit with that leadership style.
B. Leadership through Stripes
Brute force tactics may evolve to a second, more efficient, form of leadership called stripes: "You do what I tell you to do because I have two chevrons on my sleeve and you have one."
In the stripes model there is more regularity. The model typically is associated in modern times with military organizations, but it is almost pervasive in civil service bureaucracies. And, the point of this theory is that there now begins to be something in it for the follower. He or she will probably say that obedience now has some minimal logic to it because someday I, too, will probably have a second stripe. I may be in the position of being able to give orders and have my will done rather than just blindly following. There is a sense of hierarchy, a sense of orderliness, some sense of procedure that is involved in this model of leadership. As a consequence it is likely to be more stable. It rarely inspires individual creativity. And it also can be very inefficient. It is not as inefficient as the brute force model. But you can have a quite stupid corporal give the wrong orders, and the organization will flounder. So if the hierarchy itself is not guided by any greater intelligence, the resulting organization simply has greater order.
C. Leadership by Expertise
That leads to the search for a different model and that is our third level on the path of increasing efficiency. We call this leadership by expertise: "you do what I ask you to do because I can show you how to do it and you can learn." The reciprocity between follower and leader here is quite different. There is something substantial to be gained by compliance with requests (and often they are requests rather than commands). In fact, if one reads in the modern theories of organizational behavior, one begins to find here the idea of the learning organization. There is a premium placed upon intelligence - expertise in doing things the right way because that is the right way to do them.
Now you might say why doesn't everything stop there? Isn't this the organization for which we all want to work? Beware, because there are several problems even with the expertise model. One of them is leader exhaustion. Again, you pretty much have to be awake 24 hours a day, always teaching, always providing a learning example. And the second, and the one that is quite strikingly evident in modern times, is that expertise quickly can become obsolete.
When I first became attorney general, we undertook major law office automation. We only had three computers to talk to each other over long distance and this was a great breakthrough. We learned about our Supreme Court results, not by fax machine or by email, but by Doug Ross's long-distance call from the NAAG Washington office, or even from a pay phone in the Supreme Court building. In those days, the mainframe was the way to go and Big Blue was king of the indefinite future. No one had heard of a local area network. Well now, of course the network is the dominant mode of communication. Mainframe IBM almost went broke. The whole point of this example is that expertise can become outdated. Making sure that the experts are working on the latest mode of communication or the latest mode of transportation is absolutely crucial. You can be the world's finest expert in making buggy whips, but when the horse and buggy goes out of style because Henry Ford came along, that expertise clearly is dated. So making sure that the expertise is continuously changing and updating itself is a significant challenge to the expertise model.
D. Leadership through Espirit´
The fourth and the highest model, if you will, and the rarest we find, is what we can call leadership by "espirit." The group is so completely focused on a shared mission that the whole is greater than the sum of its parts. Each person performs at a high level of expertise, and each is aware of the strengths of the other. It is very hard to tell leader from follower in this model because leadership is a changing mode depending upon the particular person or set of skills or group that is required for success. That level is invigorating, it is exciting, but it is very rare and it is very hard to sustain it.
Probably all of you have worked in this kind of setting. Perhaps you were the titular leader or maybe a person without a title but who was accepted nonetheless as an equal. This collaborative style has an extraordinarily high efficiency and an enormously satisfying sense of outcome. Why, then, is the model so rare? Think through what it takes. It takes a very significant amount of communication continually centering the responses of every person so that each knows what others are doing. Often, regrettably, times of crisis don't seem to permit us to do that.
The other thing this model requires is an extraordinary degree of something very fundamental. It is called trust. And in order to have that trust you have to share a common sense of values. You need a common understanding so that you just don't give orders randomly or even assume what people instinctively will do.
I admit to you candidly that when I first began in the business of leadership, I thought the notion of mission statements was silly. I thought that developing a goal statement was something that one did with a bottle of chardonnay and a hot tub and a feel-good group. (laughter) I didn't see much value beyond it. I have changed my mind radically. I now understand at least an exercise in which a group talks seriously about personal values is very powerful in developing a common set of deeply understood goals, objectives, values, and purposes. And when that process works, and when people have that level of trust and communication, extraordinary things happen in that organization.
So just to review the hierarchy, our first paradigm depends enormously on the motivation of fear, perhaps a powerful immediate motivator, but not a long lasting one. The second one relies upon an appeal to order. The third mode invokes an appeal to reason and rationality. And the fourth style resonates deeply with an appeal to aspirations and to values. So there really should be no surprise that the espirit? model constitutes the style of leadership to which most people aspire if they believe they can develop an organization to function at that level.
III. Leadership and Values
But is this just Utopian thinking, you may be asking? I hope you were asking that question, because I'll now report some empirical research that my students and I discovered in my freshman seminar. This particular data comes from a book called "The Leadership Challenge", co-authored by Kouzes and Posner (1995). This book contains a survey of something like 90,000 people on four continents, not only from North America but also from around the globe. Respondents were asked the characteristics which they most admire in leaders. What characteristics are absolutely essential? I'll now be the professor without asking you to suffer any consequences, and just throw out some adjectives to you. I ask you quickly to make a mental note of those adjectives which you believe most characterize the greatest traits you admire in a leader: "Competent." "Fair minded." "Intelligent." "Straightforward." "Courageous." "Caring." "Honest." "Self controlled." Think of some others. And the result - I open the envelope - is that far and away the single most admired characteristic of a leader in this four-continent survey of tens of thousands of people is "honesty." Honesty is twice as important as intelligence by these rankings. It is three times as important as being caring. It is almost four times as important as being ambitious. The list goes on, and you can study it for yourself.
This last study is a striking validation, if one needs it, of what I would think to be the instinctive notion that ethics matter.
If you think of organizations of which you've been a part or which you as consumers have observed, how many of them do you think stink because something is rotten at the top? You see, it's a contagious disorder, and it spreads very rapidly. When you go into an organization you can tell surprisingly quickly whether the people who are running it have values that are worth emulating or whether they're shallow, even corruptive. So in addition to having aspirational value, there's an extraordinary empirical validity to the notion that ethics and ethics behavior matter to us as consumers and hopefully as practitioners of the art of leadership. Leadership and ethics are inextricably connected.
IV. Ethics in Politics: Some Definitions
Well, what is ethics? I can't and won't give you a long definition other than one by way of exclusion. It's more than not going to jail. Yet to this day I still remember J.D. McFarlane, who was then attorney general of Colorado, telling us baby attorneys general at our briefing in December, 1980, "one of your primary jobs as attorney general is to stay out of jail." (laughter) That is good advice. (laughter) And sadly didn't work for five or six of my colleagues. (laughter) But I think you understand that we are trying to be aspirational above that modest achievement. (laughter)
At the same time, I would hope you'd all agree - and it's important to have this understanding because the media doesn't even reflect it - that ethics means something more than not breaking laws with respect to ethics. Those are minimal conditions. They do not describe the ethical life, and they do not even describe an ethical office. I think you'd be able to tell the difference in an office in which there is technical compliance with every rule and regulation and the one in which a notion of ethics as a way of life, a system, a process, a habit of conduct, a notion of trying as best we can to do the right thing - is a culture that is pervasive. So that's why I think the subject is important to us today. It certainly goes well beyond the notion of staying out of jail, although that tends to be the equation in the popular media.
One of the ironies of our life is, of course, that Americans have a very high set of expectations for their government and yet, ironically, a very low tolerance for those who occupy the offices of that government. It's a paradox. We hold our institutions of self governance in extraordinary high regard, and yet historically we seem to have a contempt for those who hold those offices: politicians and bureaucrats. You may have heard that Parker Brothers has come out with a new game, having been successful with Monopoly since 1935. This new game is called Bureaucracy. Only in Bureaucracy the first person to make a move... loses. (laughter) I'll stop right there, but you get the point.
There is a difference in our society, I think, between skepticism and cynicism about our governmental institutions and the ethics of those who hold them. One, skepticism, is healthy and perhaps even essential in a democratic society. And it's hardly new. If one reads the wonderful book "Founding Brothers," by Joseph Ellis, you certainly see that the founders were not all of the same mind. In some quarters they had disagreements among themselves, and they engaged in the slinging of the usual political mud and even more profound misbehavior. But they were high-minded about purposes even when skeptical of others' motives. Consider Thomas Jefferson, who once remarked that the whole art to government consists in being honest. George Washington claimed that "virtue and morality form[ed] the necessary spring of government" and were "indispensable supports" for political prosperity. "The mere politician ought to respect and cherish them."*
But cynics lack a concern for high-minded purposes. Outright cynicism is corrosive and it is destructive. We pay a very high price for it, because it leads to the erosion of confidence in democratic institutions, institutions that are absolutely essential to the survival of our system of government. A quick footnote: The Carnegie Institute of Higher Education has done a study of the views of nearly 100,000 college students over the last several decades. And what it found, at least in the 1980's, is that the corrosive effect of Watergate and Vietnam was so extraordinary that only 5 out of 100 or 1 out of 20 students believed that government at any level could do any good for any person at all. This represents a shocking withdrawal of confidence that has profoundly negative and frightening implications for the future of our notion that we govern ourselves and expect to do things for people through those institutions.
We don't need to go very far to witness government scandal. The Keating Five is such old news that my college students today wouldn't recognize it. But as recently as this week, a member of the House of Representatives was expelled for unlawful behavior, an action quite striking because it was only the second time since the Civil War that any member of the House of Representatives has been expelled from that body. We see issues continuously raised in our media, and questions ranging from the character of people and their campaigns to the evils of campaign finance itself. And often our government is in gridlock, even apart from the questions of how money influences the politics of gridlock. The notion that our government will not act raises in people's minds questions of ethics related at least to the quality of political courage.
A. A Litany of Political "Sins"
Well, what, beyond original sin, causes all of this? Or how do we characterize our problem? For the balance of my remarks I want to speak beyond the influence of money in politics. It is true that the relationship between money and the achievement of political outcomes is probably the most common equation that people make and rightly so. Yet if we're to talk about ethics in public service, the topic goes well beyond the role of money. Part of the problem, with notions about ethical behavior and codes of ethics is that so often they focus too exclusively on the role of money and politics. What are the compensation limits for public officials, the proper uses of campaign funds, and the appropriate level of disclosure of conflicts of interest? But they don't focus on other things, perhaps because the law can't so easily attach sanctions to them.
Let me mention some common moral failings by way of reminder.
The first: the ostrich syndrome. The easiest way to deal with a political problem that seems intractable is not to recognize it. Is that an ethical issue? I would argue yes. So is it a surprise that whether or not one wishes to push a particular political agenda can lead one to manipulate whether there exists a long-term budget surplus or a budget deficit forecast? The ways in which both parties in this nation have played with projections about our future fiscal health or sickness is disgraceful if one seeks some element of truthfulness in forecasting.
The second sin, all too familiar, (by the way, I'm probably not identifying any political sin of which I've not been guilty, so we're all in this together) is the my SOB v. your SOB problem. We know that he is an SOB, but as long as he's on our side, that's just political "operations." The most famous practitioner of this stripe probably is Charles Colson, widely quoted in his statement to the White House staff of his time, "I would walk over the grave of my grandmother to reelect the president."
The third ethical shortcut is that, "everybody does it." That is the politics of the lowest common denominator. There are two plausible rejoinders to this allegedly world-wise observation. First, not everyone does do it. And second, to elevate convenience to a virtue may actually be socially catastrophic, if everyone does start doing it!
The fourth ethical failing is the belief that we can impose artificial limits on our own responsibility. This is the Werner vonBraun syndrome: "I just shoot zee rockets up in zee air...vere zhey come down is not my responsibility."
A fifth ethical lapse may not be seen by all people as an ethical issue, but I believe it is. It is an ethical issue especially for those who aren't in this room. You are here because you revere and engage in public service, every single one of you, whether you hold an office or not. Consider the posture, though, of the sidewalk superintendent: "It's well and good for you to talk about politics, but I don't want to get my hands dirty, I'm above it." That's actually what an entire class of people, the educated intellectuals, did in Weimar, Germany, before World War II. In that nation, an unstable democracy trying to become established, the educated intellectuals said "Ohne mich." ("Without me.") Intellectuals don't do that sort of thing. Now, whether they could have prevented the collapse of German parliamentary democracy caught between the Nazi right and the Communist left no one can really judge. But certainly it raises this profound ethical issue about the obligation to participate. All of us likely have seen this in one way or another with friends who chose not to run for elective or apply for appointive office because they believe it will sully their characters.
A sixth failing is ethical arrogance... the talk-show democracy syndrome. This is the superficial rule of self-certitude. It is the notion that the government is really reducible to one-liners and slogans. It reminds me of the old statement made about people from my alma mater, which is that you can always tell a Harvard man, but you can't tell him very much.
Then, of course, a part of this inventory is what may be the most serious and pervasive problem. It has nothing directly to do with taking money, although it may have to do with soliciting it. It is "finger in the wind" leadership. The issues are on the screen or off the screen based upon what over-night polling has told us. The politics of the long view is the politics of loneliness, isn't it? There are no natural forces in political life, at least in active political life that seem to militate for taking the long view. In another context, the economist John Maynard Keynes once reminded us that "in the long run, we are all dead." His counsel, though, was meant to temper economic thought, not political action.
V. Ethics in Society
If you think the preceding has been a broad brush, let's now pull out the Gatling gun and put it on a lazy susan and spray around. These issues are not limited to politics. One of the dangers of our ethical discourse is that we say that politics is an enclave apart, so sullied by misbehavior that we will reserve it exclusively for our moral censure. We'll feel good about ourselves by believing that politics alone is the sole arena of serious ethical corruption.
That isn't so. Consider the news media. Consider the actions of editors at The Washington Post. Knowing that Arthur Ashe, the tennis star, had AIDS, they waited for a tabloid to break the story in order for them to retain their "principled" approach to coverage. Or consider NBC's famous, or infamous, filming of the mocked up "crash" of the General Motors vehicle. Or even as recently as last New Year's Eve, remember that one television network morphed out the Times Square logo of a competing national network for purposes of its own broadcast.
I know you can hardly wait for this next category because it has been the sum and substance of headlines for the last several months. The ethical failings of business leaders are legion. Enron is now a verb form. A national accounting firm literally implodes upon revelations of its complicity in deception. Stockbrokers admit to egregious conflicts of advice and conduct. Earnings in the billions must be restated. Congress passes overwhelmingly a draconian litany of prohibitions and disclosure requirements that would have been politically unthinkable only a few months before.
Business leaders were lionized in the book (revised edition, 2000) that I purchased for my leadership class. I used it to demonstrate something else. Fifty U.S. business leaders were profiled. Three corporations whose leaders were prominently featured were WorldCom, Enron and Tyco. With each was a fawning biography of the leader showing special genius, the capacity to create inspirational workforce behaviors, and so forth. A number are now consulting their criminal defense lawyers.
Martha Stewart may or may not be guilty of insider stock trading, but her entire business enterprise is at risk because of the perception of her ethical misbehavior. The larger reality is that perception of ethical misbehavior actually affects economic behavior at a macro level. It clearly contributes to stock market instability. Certainly the lack of investor confidence because of the exposure of excess improper and outright illegal actions by people have accentuated, I think, the volatility of the very market upon which people's pension funds and future livelihood depend. The ethical lapses that have ruined the economic prospects of tens of thousands of innocent workers are grotesque indeed.
But let's not forget the arts. Recently, one of the top grossing films in this country featured a psychopath who not only murders but eats his victims. In the world of letters, the novel of the year was of a young mother who wrote about murder and torture. The best in musical theater in America a couple of years ago was a charmer about the assassination of the President. MTV features a hit song about an incest victim. Barbara Walters gathers a huge television audience when she interviews a convicted murderer. Robocop II, at the local video store, creates a total of 81 corpses by its conclusion. By the age of 18, those of you who are parents probably know that the average teenager will have witnessed 200,000 episodes of televised violence, including 40,000 killings. Some wonder, then, that we may be culturally desensitized to the notion of personal violence.
No profession is exempt. Just read our headlines. The fertility doctor who fathered dozens of children; the psychiatrist who admits to sleeping with her patients. Religious leaders in trouble extend beyond television evangelists. Consider very current troubles of the Catholic Church in dealing with the epidemic conduct of allegedly pedophilic priests.
And I shouldn't leave my present calling out of this m�lange of ethical transgressions. The university has its own problems. A dozen years ago we experienced allegations of illegal indirect cost recoveries and misconduct regarding Federal research grants. Questions arise about plagiarism even by distinguished scientists, and, as recently as two days ago, came the revelation that an admissions officer in Princeton had cracked the privacy of students who had decided to go to Yale instead. So no institution is immune, and to argue that only in politics are ethical defaults serious is, I think, materially to misunderstand our own society.
What have we done about all of this? One honest response is that we have done very little. If one looks at the ethics laws that were adopted by state governments in the aftermath of Watergate, there was a rush to do the symbolic, the obvious, or both. Those laws tell us not to have conflicts of interest, or, if we do, to disclose them. They prohibit certain things that are fairly appropriate for prohibition such as pay offs, bribery, the acceptance of expensive gratuities and inflated honoraria. They deal with the use for private advantage of government property such as telephones or cars. They address government privileges that might be used to one's advantage such as the inappropriate use of confidential information.
Our election laws relating to ethical conduct work on a more modest scale. The First Amendment largely appears to prohibit limitations on monetary contributions. The election laws proceed on the basis of a disclosure. But that foundation itself has a heroic presumption. The heroic presumption, as I am sure you all know, is that someone will care. But for someone to care, the disclosure has to be publicized by the media as an intermediary to carry it to you and me. If the media do not care, or if they are not sufficiently energetic in pursuing disclosure, the ethical policing strategy fails.
VI. The Problem of Machiavelli
None of these issues, as important as they are, deals with the most searching ethical dilemma in public service. I call it the problem of Machiavelli. It's also an issue that is examined in Michael Waltzers' classic 1974 essay called "Political Action, the Problem of Dirty Hands" and in the profound lecture by Max Weber, the German sociologist, entitled "Politics As a Vocation." Here's the main issue as best I can summarize it in this brief time. Doing evil, or doing wrong, is postulated to be a necessary part of being a ruler, even a good ruler. Machiavelli, who broke through Western tradition so profoundly that the reverberations are still with us to this day, argued that the ruler has to, and I am now quoting, "Learn how not to be good." You have to be prepared to feign goodness in the modern day - be seen on CNN coming out of church carrying a Bible - but you have to be prepared also to do what in some moral codes the people call evil if you wish to survive and to do other good deeds.
Sir Isaiah Berlin, whom I was fortunate to hear when I was at Oxford University many years ago, gave a brilliant series of lectures on Machiavelli. To this day, his is the most provocative analysis of that paradigm-breaking philosopher. Berlin argues that Machiavelli discovered and made peace with a true clash of values. He was unlike any of the other Medieval and early Renaissance thinkers who believed that you really could reconcile the true, the good and the beautiful. Machiavelli argued forthrightly that we have an unavoidable clash in values, that all values aren't of one piece, and that you have to live uneasily with the choice of one set of values if you are to be a ruler rather than another set of values that may be good for the common person.
One doesn't have to capture all of Berlin's conclusions in order to understand that this is a profound and unsettling set of choices. Michael Waltzer explores the problem of necessary evil in politics by a focus on discretionary actions. Who authors these rules of discretion? Do you think that you can govern innocently? And he answers, "no." Because it's possible to do the right thing while governing, and now I'm quoting, "It means that a particular act of a government and a political party or the state which is exactly the right thing to do in utilitarian terms, ... leaves the man who does it guilty of a moral wrong." I think he's correct about this. Waltzer argues that there are three reasons why politics or public service is a more serious arena of ethical action than other arenas.
Politicians, first, are different than other entrepreneurs and people who hustle us. Many people want to achieve goals and satisfy our needs. But the politician claims a different role. The politician doesn't merely say that he or she is going to cater to our desires. The politician claims to be acting on our behalf. And even in our name. For us. That's different than the person trying to sell us a car or hustle some other service. The second reason is that politicians are thought to be worse because they seem to rule over us. And there is a difference between a ruler and the ruled. There is a position of privilege that sets apart that particular public servant. And the third is, echoing other theorists, that the victorious politician uses force or the threat of force not only against foreign nations in our defense, but also potentially against us, and even against us in acting to further our greater interests. Waltzer's conclusion is that if you're in the political arena, you can do the right thing but must be overtly aware of your conscious moral guilt.
Max Weber develops an equally profound theme. Politics deals inevitably with the realm of consequence. So you cannot measure political action and justify its viability based upon the purity of your intention alone. Weber didn't observe that the road to hell is paved with good intentions, but he could have. That's what he meant. Part of the very ethics of political action, in other words, is one's ability rationally to estimate the consequences, the human consequences, of the chains of action that you initiate. The good or evil of political action is not the state of mind you bring to engagement. It is not the holiness of your intentions but rather the consequences that result in human terms. If this reasoning is accurate, it is also troubling. It is very hard to know which chain of consequences one has to anticipate and how far in the future, the indefinite future, one has to estimate it. But this is a different and valuable way of thinking about what it is we do and how to judge our acts as good or as bad. I am reminded in this regard of a remark made to me by a British General who had been on the staff of Field Marshall Montgomery during World War II. He commented, almost offhandedly, that in politics and journalism and military intelligence "a half truth on time may be more important than the whole truth too late." So one does not have the luxury always of reflecting. In the world of politics, action is demanded. A person has to act sometimes with incomplete information or else the events one seeks to influence will already have occurred.
VII. The Changing Landscape of the Public Servant
So much for the theoretical part, for ideas that may enlighten our reflections on the good and evil of intentions and actions. I want now to address very briefly six phenomena in my own political lifetime that have changed in the political arena. The changes have been quite remarkable. Those changes affect the landscape upon which we act and because these changes may make principled actions more difficult, they complicate our already difficult ethical choices.
A. The Devaluation of Government Action
The first development is a monumental sea change in public attitudes. It is the overt devaluation of public service and the role of government in public life that has occurred in the last thirty years. In the United States in the first three quarters of the 20th Century, views about government were generally benign and often highly supportive. Why? World War I represented the apparent rescue of a European continent from its own tragic conflicts and miscalculations. The mobilization of American society in the face of the Great Depression is the subject of much historical revisionism. But most people would regard Franklin Roosevelt and the New Deal as having saved not only the American economy but actually having saved American capitalism. The distinguished German writer, Thomas Mann, in his great and last series of the Joseph novels actually wrote a thinly disguised tribute to Franklin D. Roosevelt in his book, Joseph the Provider. Our government was the provider of human resources, a massive safety net. And of course, after World War II, two great government programs acted to stabilize our economy, provide individual opportunity, and even create the suburban lifestyle. The GI bill provided for affordable veteran's housing and affordable higher education for millions. The second program was the Defense Act that built the interstate freeway system.
These programs basically created the stability and mobility of the postwar American middle class. Bear in mind that the consensus of American economists going into and during World War II was that there would be a massive depression after the end of the war because of the collapse of aggregate demand. This did not happen in part because these government programs helped to create a great American middle class that got housing, obtained education, became part of a more talented work force, and had mobility to establish the suburbs and all which that lifestyle, consumption pattern, and voting behavior produce. Government as a regulatory force that oppressed individuals was not the predominant image. Even in the early days of the Great Society, government as the provider of opportunity was a metaphor of civic allegiance. How remarkably that image now has changed.
B. The Metaphor of Government as "Enemy"
The second trend is the actual emergence of the metaphor of government as enemy, something that one sees repeatedly in popular literature and film. Twenty years ago it was embodied in The Parallax View and The Manchurian Candidate. More recently, Men in Black, Matrix and the television series Dark Skies embody the idea that we do not see a hidden reality. The originator of Dark Skies told me that it was his attempt as a producer to explain every significant event of the late Twentieth Century in terms different from the common understanding. We love to think conspiratorially. Consider Area 51 and crop circles.
And this emergence of the metaphor of government as enemy is not benign. Timothy McVeigh, the Unibomber, and other people who have been engaged in acts of massive terrorism that have killed people have shared this mindset. The Internet spreads this contagion with enormous power. My son told me the other day - he's a very bright kid - that he had read the net and therefore assumed that the Taliban was responsible for the energy crisis in California. I don't believe that it was, but he asked for my evidence to the contrary. (Laughter).
C. Public Servants and Special Privilege
A third point of abrasion is the emergence of the perception of government employees as the possessors of special and unwarranted privileges. This is more than a complaint about tenure. It is more than the old adage which defines "bureaucrats." (A bureaucrat is a person who knows all the rules without understanding any of their purposes.) It presents itself in Oregon with populist attacks on notorious abuses of the public employee pension system. Government employees can retire at a greater income than that which they earned during the period of their employment. Public servants fight a perception that they're all leaning on shovels.
D. The Disconnection between Payment and Service
The fourth change in landscape is in a perceived disconnection between payment and receipt. "Where is my value added?" people ask of their government. How do you measure government outcomes? What portion of my tax dollar buys something I like? What is the purpose of regulatory government? Part of the cache? of Ronald Reagan's denunciation of the welfare queen who bought vodka on food stamps (a queen who may never have existed) was its appeal to people's understanding that this phenomenon happens all the time. There is no value added to them from the actions of a government which permits this abuse to occur.
E. The Capture of Government by Others
The fifth attitudinal shift is rarely noted, but I think is increasingly powerful. It is the fear of capture of government by people whom we distrust. You see, it's not just that we distrust government. If that alone were the problem, there would be a fairly easy remedy of trust-building actions. It's harder to fix if the other guy is going to capture government and use it for his own purposes. This is a perception that is very powerful if you take a deep look at the cross-tabbed polling data. It isn't just what the government does, it's what my neighbor - whom I don't trust, don't like, or don't understand or overtly fear - may do with the instruments of government. The notion that institutions which pose obligations on us because they serve larger purposes all of a sudden become suspect when those purposes are seen not to be noble, not to be generous, not to be magnificent, but rather simply to be the political agendas of special interest groups with which we don't agree.
F. The Seductive Appeal of Reinvention
And the sixth trend may be not new but is certainly newly evident. It is the reinvention craze. It exalts the notion that we can have transformational change at no cost, without new taxes, and without real heavy lifting. It's the quick fix mentality. It's a fad that fails to recognize that "reengineering," which came to us as a term from the private sector, largely has been rejected there because it didn't work. I read and now wish I had saved a story in the Wall Street Journal four or five years ago. The two major architects of reengineering as a concept who wrote best selling books, received thousands of dollars in consulting fees, and made the rounds of Fortune 500 companies wrote a mea culpa. When asked by the Journal's reporters why reengineering wouldn't work, the authors made this staggeringly simple confession: "we forgot about the people." Downsizing as Chainsaw Al Dunlap would do, 10,000 people at a time, leaves a legacy of workforce bitterness and, as Dunlop discovered, a climate of failure in shareholder returns that ultimately devoured him.
Painting by the numbers may seem easy, but painting as real art is a different task. There's a story about a guy who was going to be a sky diver and he thought he could learn the sport by reading about it in a 32-page manual. He then went out to the airport, sized the parachute straps, signed a waiver and asked the pilot to take him to 5,000 feet. The pilot flew him up, turned the plane on the side and the guy falls out. He reaches for his front bag, just as was instructed on page 7, but the rope comes off in his hand. Now he's falling down toward the Earth getting a little bit more worried, but he recalls that on page 32 it says there is a reserve chute on the back, so he pulls that shoulder handle and a piece of cord about two feet long comes out, and that's all. Now he's falling really fast and very worried. But he suddenly sees a guy coming up from the ground toward him. When he gets close enough, he yells "Hey, do you know anything about parachutes?" "No." "Do you know anything about propane stoves?" (laughter).
So my rejoinder is basic. All of the easy solutions have already been discovered. If one is in for public service in the long haul, we need to recognize that only complicated issues remain.
VIII. Emerging Ethical Issues
As I canvas the inventory of current issues that we might be concerned about in public service, I identified three that will or should involve most of us. Even in our casual conversations about the right things to do, these questions should involve us as engaged citizens.
A. The "War" on Terror
The first ethical inquiry, to no one's surprise, involves the war on terror and its implications. Consider three topics. First, note the argument from a column in The Wall Street Journal last week. The writer, a military affairs and terrorism expert, argued that we in this country are wrong to condemn Israel for targeted bombing of a Palestinian headquarters. It did kill the guerilla leader, as well as civilians. But, the writer observed, it had been in the context of a deliberate attempt by the guerilla leader to surround himself with women and children as insulation from attack. Should the moral condemnation be reserved to those who use women and children as shields rather than those who slay them accidentally in attempts to remove a terrorist leader? I pose that as an issue, not because I come to you with a ready solution, but because that is one of the things about moral thinking and moral judgments in this unsettling context that demands depth of thought.
The second issue may be more striking because of its author. It was contained in an argument in a national magazine by Alan Dershowitz, professor at Harvard Law School, and someone whose usual views are quite notably left wing. Dershowitz proposed that the United States should seriously consider the use of torture as an instrument of extracting information from terrorists about imminent acts of violence. That discussion, let alone that author, would have been an unthinkable part of the agenda prior to September 11. We have justifiably elevated concerns about personal security. Does that suitcase on the sidewalk around the corner really contain a small nuclear device that might contaminate the city for generations? Does that potential for mass destruction change the stakes in terms of extraction of information? May police or intelligence practices be required to honor the personal security and bodily integrity of another person in the way that our criminal law has always commanded? Does survival trump the Constitution? The ethical issue is that of trade offs in domestic security. We commonly see these questions, in part, as civil liberties issues. But are they something more than that? Is the use of informants or are the questions of collective security now so great that they weigh differently in the utilitarian balance against personal liberties than they once did? How should we balance the greater good against the notion of personal autonomy that underlies much of the Bill of Rights, let alone the First Amendment?
B. Corporate Conduct
The second set of issues on national center stage are those with respect to corporate governance and corporate misconduct. But the real ethical issues, I think, are ones that have not surfaced sufficiently. For some reason, whenever we see an ethical issue in public life, we think of expanding the reach of the criminal law. And whenever we think it's not being treated seriously enough, we reflexively propose greater criminalization. Most of you who hold a certificate of appointment or election would say that's not necessarily appropriate. The issue of containing corporate fraud may not be a legislative criminal justice issue. It may be an appropriations issue. Think of the likelihood of corporate behavior change if the SEC had 1,000 more investigative accountants rather than new laws. Is it ethical for lawmakers to shortchange enforcement while enhancing and trumpeting punishments that will only be visited upon a few?
C. The New Biology
A third issue on the ethical landscape is as elusive as it is troubling. All of us will be wrestling with the ethical issues involving the new biology for the rest of our lives. We have no obvious moral framework to invoke because the very definition of life and what it is to be human are subject to much more manipulation and scientific change than would ever have been thought possible by any writer in the last century except Huxley.
These are very practical, personal and emotional issues. Coming from the particular perspective that my wife and I do, you should ask people to walk a mile in your moccasins before making judgment. So what should be an appropriate source of lifesaving stem cells? It may well be that technology can take them right now from the bone marrow of a mature person as well as from an embryo and manipulate them to treat a deadly disorders. That certainly is our hope. But we know personally the family that brought a baby into this world in order that the umbilical cord could be tapped for stem cells so that Molly Nash, a child with Fanconi anemia, could get a life-saving stem cell transplant.
Perhaps you read about the Nash family in People Magazine or one of a dozen others. They've given up their privacy in order to take the case public. But rolling the genetic dice to select a disease-free child who also is a bone marrow match leaves them subject, apparently, to some public criticism. They brought a child in this world for purposes of saving another life. And the moral response? For God sakes, some people bring a kid into this world because they're drunk! So, deciding how one thinks about, talks about, and then acts on these issues is not going to be humanly easy. The Nash case is one of the easiest of many others yet to come. Gene therapy, a near reality, poses the question of choosing birth traits for children, not merely cure of diseases. I doubt that we can recork the genie in this set of bottles. This category of moral issues will end up, I predict, on the desk of the attorney general or the assistant sooner rather than later. And we don't yet necessarily have the vocabulary or analytical tools to resolve issues of the new biology with the intelligence and wisdom that they require.
IX. The Attorney General and the Rule of Law
Let me return to some concluding thoughts about the role of the attorney general. After developing this long inventory of thoughts to share with you, I ended feeling very good about where you stand and how you function in the sphere of the attorney general. In a world in which a notion abounds that ad hoc quick fixes are the only option, the state's chief legal officer can anchor decisions in the rule of law. That's a profoundly comfortable place if the legal system has any integrity. When no other political actor has a particular anchor or sail, you still can say that constitutions matter. You know that the allocation of government powers to make moral decisions and how those powers are exercised is an appropriate issue for you. That inquiry has an answer and that answer can be given consistently and in a principled way. One can proclaim that constitutions matter in terms of individual rights. There may be varieties of interpretation. But there is also, for you, a common core of tools of reason and analysis. There is a framework for understanding that allows us to say what is the correct level of protection for those personal rights that help to define and maintain a free society.
The attorney general has the role of giving principled legal advice. That office is the internal policeman to the rest of the state or provincial government. It is a position both of great responsibility and one hopes of great psychological security because doing the right thing, in part, means making sure that people do the same thing for the same principled reasons day in and day out. Third, the attorney general has the right and indeed sometimes the obligation to say "no" to a client. He or she doesn't have to lose the client in the process! What a luxury. Think about the terror of a private practitioner who may wonder how far professional judgment and personal integrity can be maintained. The attorney general, by virtue of the laws establishing that office, is able to say that "no" counts and make it stick.
Of course, you do not lack daily ethical temptations. Maybe the greatest ones are in the arena of the criminal law and its processes. You all know, I think, that if you even breathe the existence of an investigation, whether it's founded or not, you can ruin the career of a person or a business forever. And that power, which is virtually unreviewable, is an enormous authority over the livelihood, reputations, and person or people in our midst.
The attorney general, because he or she is the chief legal officer, is also in a position of being a teacher, an educator. You are a teacher about the ends of government and a teacher about process and procedure. The longer I travel on this planet the more I'm convinced that there are profound moral and ethical values in processes and procedures. Felix Frankfurter once wrote that the history of liberty is the history of procedure. And you live with that knowledge as attorney general or assistant in your offices.
X. The Long View
I do not conclude with a magic formula or an immutable code of ethics. But there is something in the long view. One way to look at that long view is through the lens of a legal term that we all understand. It has been in evidence in other times of our history. And that's the concept of trusteeship. The trustee has certain responsibilities for which he or she is personally accountable. One of the trustee's principal responsibilities is to look for the long view. The search has precedent, happily. It has happened in other times in our history. Those of you who know me know that I'm particularly fond of the history of the American Revolution. And at that time you may remember that John and Abigail Adams, the great American couple, were part of the revolutionary movement. But unlike the fabled stories in some of our history books, this was not 13 colonies united against the crown and parliament. In fact, only about a third of the colonists were actively engaged in the revolution. A third were neutral and a third were actually Tories.
When John was away at the war front doing business, Abigail wrote him and asked: "What should we tell our neighbors? Why are we doing this?" And John wrote her back that famous letter: "You tell them that we study war, so that our children can study business, law, commerce and invention, so that their children can study art, and poetry and music." And in that wonderful statement of trusteeship is the immense sense of personal responsibility to create a world that you will never see because that is the birthright of people yet unborn on this great green planet. That's a powerful statement. It is essential to our character. It is a central part of what it means to be a public servant. It is a profound statement of ethics, and it is, I trust, something by which we all try to live our lives. Thank you very much. (applause)