Building an Immune System For Society’s Institutions

UPDATE: I gave a talk about this (and some of the other blueprints) in Dallas and it is now up on YouTube

In nature, people and animals are all born with powerful internal immune systems that protect them from disease. When sources of corruption and disease are introduced into the body, a well-functioning immune system responds to target those sources, before they can take root inside the body and lead to physical decay and degradation.

Imagine for a moment a person without an immune system. That person would constantly get sick. Because their body would have no ability to heal itself, they would be forced on a regular basis to seek external assistance from doctors in order to fight disease and feel better. However, a healthy person’s internal immune system can deal with many illnesses, some of which, do not need any external assistance from a doctor which is a more effective way to fight against disease.

A body without an immune system or a dysfunctional one will always need external help to stay healthy.

Currently the governing institutions of the United States are sick. There is a creeping sense throughout the American public that corruption has set in at multiple levels. Every day, there are multiplying examples of the undue influence of corporations and big money donors who demand and receive preferential treatment, institute quid pro quo arrangements, and worse.

There is at present, no internal immune system that can fight this corruption and bring ethics back to government. At the federal level, it falls to the Inspectors General (IGs) to monitor abuse and fraud within federal agencies. IGs are present in almost all federal agencies, but are independent actors. Their mission is “to prevent and detect waste, fraud, and abuse relating to their agency’s programs and operations, and to promote economy, efficiency, and effectiveness in the agency’s operations and programs.” IGs have completed important work, by monitoring and exposing abuses in their agency, however they are too frequently hamstrung in their ability to enforce their findings, due to a lack of resources, as well as general lack of interest in enforcing penalties. This lack of enforcement capacity is critical when it comes to understanding the ineffectiveness of the IGs. They can write all the reports they want, but without any enforcement capabilities, they may as well have written nothing at all. As Peter Tyler of the watchdog group Project On Government Oversight notes, IGs “do really good work, but the question is, does anybody listen?”

IGs operate apart from their agencies, in order to preserve their independence. However they remain part of the executive branch, which leaves them functionally in a no-man’s land, still somewhat external to the agencies they are meant to oversee, but without a body behind them to provide the teeth to enforce their findings. They are the doctors who are brought in from the outsides when something has gone wrong, but they are not a fully integrated part of the system, and they are not allowed to get the job done.

What can be done to bolster the strength of our IGs, who are government’s ethical immune system? In effect, IGs need to transition from being the external doctors who come in when something is wrong in order to heal the federal government. Instead they must become the federal government’s immune system, able to heal it from the inside.

I contend that any proposed changes should have two goals: 1) strengthening the enforcement powers of the IGs, so they can carry out the recommendations made in their reports, and 2) formalizing their full independence from the executive branch, while assuring on a practical level, their integration into the workings of the government bodies they are meant to oversee.

Proposal:

In order to accomplish the goals described above, I am proposing a constitutional amendment that dissolves governmental ethics offices as they currently operate, and establishes an independent court of ethics with the power to investigate government ethics abuses, wherever they might exist, bring charges where appropriate, and dispense punishment when necessary. The following is by no means an exhaustive list for punishment:

  • Reprimand
  • Extensive Training
  • Fines
  • Garnishment of wages
  • Removal from office
  • Banishment from public office at any level for any specified time

Under this proposal, IGs would continue to exist, and like before, they will continue their roles as government watchdogs across all agencies. However, they will be formally apart from the executive branch and instead report to the newly formed ethics court system. The number of IGs can even be increased, to ensure that there is no governmental body without one. Collectively, IGs will have a formal mandate to monitor ethical abuses across all parts of government. There will be no place they can’t go and nothing they won’t be allowed to see. In order to encourage individuals with evidence of wrongdoing to come forward, the IGs will also have the ability to grant full immunity to whistleblowers as they deem necessary. This immunity would put whistleblowers beyond the reach of all retaliatory actions from any other part of the government. However, the IGs, or the court can also revoke this immunity at their discretion if the situation calls for it. Any retaliatory action would be considered a break of ethics and warrant termination from the position.

Where an IG report merits charges being brought against a particular official, it will fall to the courts of ethics to pass final judgement on the case and to enforce relevant penalties. This new court system will have an analogous structure to the broader judiciary, with regional district courts that can serve as enforcement mechanisms for state level ethics commissions and other equivalent bodies. A federal supreme court of ethics would sit above the district courts and they would provide the final say on all cases. These ethics courts will be distinct from the general court system, by their narrow jurisdiction that focuses squarely on ethical misdeeds of government officials and civil servants, however their daily functioning and processes will be similar to what occurs in civil and criminal courts. The Supreme Court of Ethics would also be responsible for the impeachment of the President, SCOTUS Justices, and all Federal Representatives.

Selection of Judges

The judges in these new courts will be vested with an unprecedented amount of power with the ability to identify misconduct and remove officials when necessary. Therefore, special care should be taken in the selection of individuals for these positions, to reduce the possibility that they themselves will be ethically compromised in the course of their work.

Congress would have a confirmation vote on all judges. However, selection is not completely open and will be removed from politics completely. All potential candidates will be evaluated by the American Bar Association (ABA), and assigned a score based on their legal perception, decisiveness, logic, reasoning and their pursuit of justice. Next, using the scores set by the ABA, members of the National Lawyers Guild will each cast votes for a given candidate on the list. Votes will not be cast as individuals, rather each member will vote from within one of three groups, according to their professional affiliation: prosecutors, defense lawyers or public defenders. (To be counted as a public defender, you must be on the payroll of a city, or relevant non-profit.) These votes will be added up by group, with each of the three groups getting one vote, based upon their internal total. The candidates who receive either two or three votes (and thus the support of the majority of the groups) will then have their name sent to Congress for final approval. However, in all cases, the public defenders must have been in support of the winning candidate, since they are the organization most in touch with the public interest. If there is no winning candidate, or if the candidate who has received the majority is not also supported by the public defenders, then another vote should be held, so that a consensus can be reached. If Congress chooses not to confirm the selection, then the Selection Group will submit the next candidate to Congress. If Congress rejects 3 candidates from the Selection Group, then the Selection Group may select one of the rejected candidates and seat them to the court. This is to prevent Congress from playing political games with the selection and to encourage them to deliberate honestly for the each candidate.

Removal of Ethics Judges and IGs

Removal proceedings should nevertheless be clearly established for both IGs and judges, in order to maintain the ethical integrity and reputation of the system. Where there is any grounds for suspicion of misconduct by an Inspector General, a panel of 6 IGs selected at random from around the country by the Supreme Court of Ethics should investigate the claims and where necessary, bring charges through the ethics court system. Where a judge is the individual suspected, then a panel of 3 judges, randomly selected, should be formed to pass judgement. If the judge sits on the Supreme Court of Ethics, then 5 Ethics judges, 3 Appellate Court judges and 1 Supreme Court (SCOTUS) justice will be selected at random and will adjudicate the claims.

Conclusion

Our government today is sick, and it needs help fighting off the disease. Dramatic action is required to restore ethical integrity and assure the public that officials work for them, and not for ulterior motives and masters. We need to strengthen our ethical immune system, by providing it with the tools it needs to get the job done. Independent IGs, with strong investigatory powers and the support of a specialized court system behind them, could be just what we need as a nation to become healthy again.