APPEARANCE ISN’T EVERYTHING Right and Wrong in an Age of Screwy Ethics

It is a paradox of our times that, with a few notorious exceptions, politicians today are more honest and trustworthy than they have been in the past, yet public distrust of politicians is sky-high. The conventional explanation is that the Washington scandal machine has so fatigued and disillusioned the public that no one pays attention anymore, simply assuming that all politicians are on the take. Thus we are told that no one cares about Fred Thompson’s hearings on the Clinton fund-raising abuses because everybody does it, and, besides, it’s already been reported in the newspapers. Similarly, people are indifferent to Whitewater and Paula Jones: Everybody knows that Bill Clinton is an amoral, philandering heel, but the economy is humming and the stock market soaring.

In The Appearance of Impropriety in America, Peter W. Morgan, a Washington lawyer, and Glenn H. Reynolds, a University of Tennessee law professor, argue that public cynicism in the face of apparently obsessive attention to proper conduct is the product of the reigning ethical standard: the appearance of impropriety. As a legal rule, such a standard is impossibly vague and therefore ripe for abuse. For this reason, the authors point out, the American Bar Association explicitly refused to apply the appearance principle to lawyers (though not to judges) when the organization adopted its new Model Rules of Professional Conduct. The drafters noted that the appearance test has no discernible limits and presents “severe problems for both the public officeholder and the private practitioner.”

Although the appearance test made its formal debut in the ABA’s 1924 Canons of Judicial Ethics, it wasn’t until Watergate that the test began to be invoked frequently and applied indiscriminately. As the authors observe in an appendix on Whitewater, it has been difficult for the public to work out the rightness or wrongness of those investigating and judging the Clintons, let alone the Clintons themselves. Not only has independent prosecutor Kenneth Starr been accused repeatedly by Clinton defenders of violating the appearance standard, so have the judges who selected him; his predecessor, Robert Fiske; and Al D’Amato, who was chairman of the Senate committee looking into Whitewater.

The costs of this effort to hold officeholders to a Caesar’s-wife standard have far exceeded any benefits. Morgan and Reynolds contend that the appearance standard is both underinclusive and overinclusive. Underinclusive because it substitutes attention to technicalities for substantive, responsible judgments, permitting public officials to engage in dicey conduct that conforms to the letter of appearance rules while violating their spirit. Overinclusive because innocent people are often caught in a net of flimsy accusations, hobbling the institutions in which they work, as well. Equally disturbing, politicians react to every new wave of scandal by criminalizing more and more ethical lapses, real and imagined.

These effects are felt not only at the national political level, but right down to the local school board and throughout the private sector. In a Louisiana parish, plans to connect school-board members to the school system’s computer network were suspended for fear of ethical problems. “To avoid even the appearance of impropriety,” one board member said, “the school system should not provide hardware to board members.” Phone lines, however, were deemed okay. The authors write, “When a high school band considers whether to appear in a campaign rally featuring the President of the United States, the debate is framed in terms of the potential for an “appearance of impropriety.” When NYNEX adopts a company-wide policy on accepting holiday gifts, management invokes the “appearance of impropriety” principle.” Small wonder, then, that the authors conclude, “Hardly anyone seems able to evaluate the rightness or wrongness of conduct these days without gravely considering how it appears.”

In their analysis, the authors round up the usual suspects — politicians waging war on their foes, journalists looking for the next big story, an institutionalized ethics bureaucracy in every government agency and corporation. Relying on appearances is easier and safer than doing the hard work of behaving morally or making moral judgments about the conduct of others. The system doesn’t really care whether an official is generally honorable and decent, so long as he has correctly filled out his financial- disclosure form and avoided lunch with members of regulated industries. This is the mindset exemplified by Al Gore and his claim that, even if he did make fund-raising phone calls from the White House, “no controlling legal authority” said he couldn’t.

This book started out as an article in the Stanford Law Review, and as a history and critique of the appearance test as a workable legal rule, it is useful and interesting. But it can’t keep up with its book-length ambitions. The authors claim that the appearance standard is merely one expression of a pervasive national obsession with appearances generally. That obsession, they say, defines contemporary society and underlies many disparate cultural and political phenomena, from witch hunts for scientific fraud to the proposed constitutional amendment banning flagburning. As they explain in the preface, “Having ourselves become sensitized to the uses and abuses of appearances in contemporary society, we found it impossible to look at the world in the same way as before. And the more we identified similar appearance problems in different places, the more we thought it would be a good thing if more people saw the same things that we did.”

They embellish these pretensions with a lot of quotations from Henry Fielding’s novel Tom Jones to draw parallels between contemporary American society and Augustan England. However apt the historical analogy, concern with how things look to other people is a pretty common human trait, persisting from time immemorial. Although the authors discuss example after example of what they call “appearance ethics,” they in fact are no longer talking about the appearance standard at all. Rather, they are describing the wholly predictable and usual way human beings — specially politicians — posture hypocritically and strike highminded attitudes in pursuit of selfish goals and hidden agendas. For example, Morgan and Reynolds appear to be shocked, shocked to discover that lawmakers wanting to appear tough on crime have enacted a lot of symbolic legislation and that prosecutors trying to make a name for themselves often overreach. It’s not that the results aren’t often damaging, it’s just that the authors have strayed beyond legal and political analysis into a larger cultural critique that lacks focus and a coherent framework. At times, they seem to realize this and acknowledge, as an aside, that concern about appearances is universal. Then they resume their struggle to convince the reader that things are worse in this regard today than ever before (except possibly in Augustan England).

They are on to something, no doubt, but it’s not concern with appearances over substance per se. The interesting question is what kinds of “appearances” are considered particularly important today and why. Thirty years ago, a family concerned with appearances might have concealed a daughter’s out-of- wedlock pregnancy or insisted on a shotgun wedding. But now, women proudly choose to have babies without husbands. At the very same time, our moral sensibilities in other areas are so fragile that Richard Allen had to resign as President Reagan’s national security adviser because he accepted a watch from a foreign government. Why are we so concerned about often trivial improprieties in business and financial relationships amid a general climate of moral relativism and nonjudgmentalism about almost everything else?

Morgan and Reynolds at least are aware of the relationship between what they describe as “appearance ethics” and the broad moral decay of society. They even go so far as to suggest once or twice that the obsessive concern with appearance ethics is a symptom of a larger failure to cultivate virtue in citizens. They quote Gary Edwards, former director of the Ethics Resource Center, as saying, “We have had entering the workforce for several years a generation of people whose moral development has been arrested.” They even advocate a renewed effort by parents, schools, and churches to reward and inculcate traditional values in children. But they would have written a much more important, more effective book if they had developed these ideas more fully. It’s hardly news that human beings care about keeping up appearances. Much more urgent is the question of appearance ethics as a symptom of moral and social collapse.

Melinda Ledden Sidak is a writer living near Washington, D.C.