Thursday, February 3, 2011

The Appearance of Executive Impropriety

The judicial and legislative branches of government are self-policing.  They hold themselves to ethical standards that require not only that judges and congressmen avoid actual impropriety, but its appearance. 

Even when they’re sure they can decide a case impartially, judges have an ethical duty to recuse themselves whenever their financial or personal attachments raise the slightest inference of partiality. Congressmen are subject to ethical rules that seem to take the appearance of impropriety more seriously than its actuality. Charlie Rangel enriched himself by cheating on his taxes and gaming the New York City rent-control laws. But the House ethics committee seemed more distressed by the fact that he’d used the stationery of his congressional office to solicit funds for a research center bearing his name because that raised an appearance that he was trafficking on his office.  (Leave aside the comical fact that, as far as the House Ethics Committee was concerned, that appearance wouldn't have been raised if Rangel had just used personal stationery.)

The executive branch operates under no comparable self-applied constraints. Although they’re positioned to do much more lucrative political favors than any judge or congressman, high-placed government bureaucrats aren’t subject to comparable standards or scrutiny. Consider this waiver recently issued by the Environmental Protection Agency:
“The Obama administration will spare a stalled power plant project in California from the newest federal limits on greenhouse gases and conventional air pollution, U.S. EPA says in a new court filing that marks a policy shift in the face of industry groups and Republicans accusing the agency of holding up construction of large industrial facilities.

“According to a declaration by air chief Gina McCarthy, officials reviewed EPA policies and decided it was appropriate to "grandfather" projects such as the Avenal Power Center, a proposed 600-megawatt power plant in the San Joaquin Valley, so they are exempted from rules such as new air quality standards for smog-forming nitrogen dioxide (NO2). . . .

“The proposed Avenal Energy project will be a combined-cycle generating plant consisting of two natural gas-fired General Electric 7FA Gas Turbines with Heat Recovery Steam Generators (HRSG) and one General Electric Steam Turbine.”
Let’s see if I’ve got this straight. General Electric CEO Jeffrey Immelt, long one Obama’s most prominent supporters in the business community, gets appointed head of the President’s Council on Jobs and Competitiveness. And within a couple of weeks GE gets a lucrative waiver from Obama’s EPA.

Maybe that’s just a coincidence but it sure looks bad. Within our system, the remedy for this sort of thing is supposed to be supplied by the disinfecting sunlight of congressional oversight. But it’s foolhardy to expect congress to shine a light on political payoffs in the executive branch when it’s controlled by the president’s party. And even when there's divided government, how diligent is congress likely to be about the abuse of discretion within the executive branch when bureaucrats only have unbridled discretion to abuse because congress couldn’t be bothered writing legislation that imposes standards on their administration of the law?


Anonymous said...

It's time for the courts to resurrect the non-delegation doctrine!

Farley said...

Doesn't the new media mitigate the problem? Before the internet, we would never have heard a thing about corrupt-looking administrative waivers. Now they are all over the other side's blogosphere.