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Administrative Ethics and the Rule of Law

Published online by Cambridge University Press:  02 September 2013

Fritz Morstein Marx
Fritz Morstein Marx
Affiliation:
U. S. Bureau of the Budget
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Extract

“Anybody we like is efficient. Anybody we do not like is a bureaucrat.” This good-natured comment on legislative attitudes toward the executive branch was made recently in Congress by an experienced lawmaker, speaking as chairman of a subcommittee of the House Committee on Appropriations. The epigram may be relished for its knowing humor, but its greater significance lies in the light it sheds on one of the most important problems of modern government—the problem of insuring responsible administration in the framework of democratic society.

For, of course, one way of getting nowhere in attempting a solution of this problem is to reduce it to a matter of personal preference. In the broader context, it is plainly irrelevant whether or not “we,” as citizens or as lawmakers, happen to “like” the individual administrative official we confront, or the particular public agency, or the functions that have to be performed under the laws, or the general direction in which things are moving in response to the policies of those elected to exercise political control. Nor do our likes and dislikes furnish a trustworthy criterion to mark the border line between “efficient” public service and “bureaucracy.”

And yet, for the administrative official it is a familiar experience to encounter sharp animosity on the part of some legislators, as well as some elements of the public, precisely for doing his statutory duty. In a party system like ours, which puts only a small premium on political solidarity, the frequency of such experience is increased because lawmakers exercise great freedom of dissent from legislative measures passed with the support of their own party.

Type
Research Article
Information
American Political Science Review , Volume 43 , Issue 6 , December 1949 , pp. 1119 - 1144
Copyright
Copyright © American Political Science Association 1949

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References

1 House Committee on Appropriations, Hearings on the Interior Department Appropriation Bill for 1947, 79th Cong., 2d Sess., pt. 1 (Washington, 1946), p. 791Google Scholar.

2 Notwithstanding its beneficial emphasis on the contribution that government agencies themselves are able to make toward improving their rule-making and adjudicatory processes, the Attorney General's Committee on Administrative Procedure did not carry its inquiry into the field of administrative ethics. See its final report, Administrative Procedure in Government Agencies, 77th Cong., 1st Sess. (Washington, 1941)Google Scholar, Sen. Doc. No. 8.

3 Legislative restrictions of political activity of civil servants have largely been inspired by two different motives. The earlier concern addressed itself to the task of guarding the emerging career service against political inroads. More recently, the emphasis has shifted to minimizing the electoral influence of government employees. For a survey of pertinent legal provisions and the general trend of authoritative opinion, see Marx, F. Morstein, “Comparative Administrative Law; Political Activity of Civil Servants,” Virginia Law Review, Vol. 29 (1942), pp. 52 ff.CrossRefGoogle Scholar

4 Recognition of the importance of common standards of ethics is one of the hallmarks of a profession. This is as true of the oldest professions, like the legal profession, as of the youngest, like the profession of public-relations counselor. On the latter, see Darr, John W., “Professional Ethics of Public Relations Counselors,” in Public Relations Directory and Yearbook (New York, 1945), pp. 28 ff.Google Scholar For codifications relating to journalism, broadcasting, and the motion picture industry, see ibid., pp. 152 ff. See also Williams, Walter, “The Journalist's Creed,” Editor and Publisher, Vol. 78 (Jan., 1945), p. 35Google Scholar; Inglis, Ruth, Freedom of the Movies (Chicago, 1947)Google Scholar, on the Motion Picture Code; Shurlock, Geoffrey, “The Motion Picture Production Code,” Annals of the American Academy of Political and Social Science, Vol. 254 (1947), pp. 140 ff.CrossRefGoogle Scholar; Interprofessional Conference, Education for Professional Responsibility (Pittsburgh, 1948)Google Scholar. A pertinent study is Carey, John L., Professional Ethics of Public Accounting (New York, 1946)Google Scholar. More general discussions are Francis Connell, J., Morals in Politics and Professions (Westminster, Md., 1946)Google Scholar; Croce, Benedetto, Politics and Morals (New York, 1945)Google Scholar; Schweitzer, Albert, Civilization and Ethics (London, 1946)Google Scholar.

6 This does not mean that there is a complete lack of codes of ethics to govern the conduct of public officials. But such codes as are available deal with particular groups. The work of the International City Managers Association deserves special mention. See “The City Manager's Code of Ethics,” Public Management, Vol. 20 (1938), pp. 304 ff.Google Scholar For further discussion, see also White, Leonard D., The City Manager (Chicago, 1927)Google Scholar; Ridley, Clarence E. and Nolting, Orin, The City-Manager Profession (Chicago, 1934)Google Scholar.

6 White, Leonard D., Introduction to the Study of Public Administration (rev. ed., New York, 1939), p. 459Google Scholar.

7 Ibid., pp. 459–460. More assurance is expressed in the following related comment: “An ethical problem which admits a reasonably precise conclusion arises when scientific findings are rejected because they are politically unsatisfactory, followed by either a refusal to publish or by a request for their modification. To the credit of scientific and professional workers, such circumstances are customarily followed by absolute refusal, backed up if necessary by resignation. A scientist will not and ought not to allow trifling with his findings.” Ibid., p. 460. However, the conclusion here reached appears to be derived from the ethics of the scientist rather than from the ethics of public administration.

8 Finer, Herman, “The Civil Service and the Modern State; Discipline and Rights,” Public Administration, Vol. 7 (1929), p. 332CrossRefGoogle Scholar.

9 Urwick, Lyndall, The Elements of Administration (London, 1943), pp. 100–101Google Scholar.

10 Ibid. Of course, a line of demarcation must be drawn between the public servant's objection to being made “a party to unethical practices in the administrative sense” and a prima donna attitude that militates against coöperation in any matter where he cannot have things exactly his own way. Administrative ethics, properly conceived, must reflect the needs of man in organization, as contrasted with man as a self-sufficient individual. Even free enterprise does not permit the head of a business to lose sight of his rôle in his own organization. Thus, “in addition to the stereotype of our classical economists—the ‘Economic Man’—there is an ‘Administrative Man’ who is part of a complicated organization trying to achieve results. Employers and employees partake of both. In his rôle as ‘Economic Man,’ an employer's concern is with profits. As ‘Administrative Man, his concern is the teamwork and satisfaction of those in his employ. For labor was correct when it resented being called solely a commodity. And not to recognize that besides the economic problems there were human administrative problems, was a cardinal error of our 19th century economics.” Sam Lewisohn, A., “Human Relations in Industry,” Advanced Management, Vol. 11 (1946), p. 97Google Scholar.

11 Kirchheimer, Otto, “The Historical and Comparative Background of the Hatch Law,” in Friedrich, Carl J. and Mason, Edward S. [eds.], Public Policy (Cambridge, Mass., 1941), p. 365Google Scholar.

12 Ibid., p. 373.

13 Cooke, Morris L., “Professional Ethics and Social Change,” Advanced Management, Vol. 11 (1946), p. 87Google Scholar. His appraisal of the rôle of the legal profession in social change is of interest, even though it is expressed in very broad generalization: “Lawyers are too much a part of government to be against it in the sense that business men feel themselves in opposition to it. But lawyers' associations as such, and all but a relatively small percentage of practitioners, block liberalizing measures so consistently as to make their passage exceedingly difficult. With the field peculiarly its own, the fact that this profession plays such an ineffective rôle in the rebuilding of our modern society must be chalked up against it,” Ibid., p. 91.

14 Ibid., p. 90.

15 Ibid., p. 85.

16 Finer, loc. cit., supra in note 8, p. 334.

17 White, op. cit., supra in note 6, p. 460.

18 In the historic evolution of the analytical approach to public administration in the United States, the assumption that scientific method made such self-limitation in value judgments either essential or at least highly desirable has carried much weight. For an indication of current drifts of thought, see Leiserson, Avery, “Political Limitations on Executive Reorganization,” in this Review, Vol. 41 (1947), p. 68 ff.Google Scholar

19 Proper use of this instrument, under constitutional government, is the prime responsibility of those placed by the electorate in political control. The size of the administrative establishment by itself is irrelevant as long as the structure is such as to accord with the need for control. The constitutional necessity of a “manageable” structure was underscored with particular emphasis in the report of the President's Committee on Administrative Management (Washington, 1937).

20 This does not mean, of course, that the constitutional distinction between legislative and executive power has no significance, or that administrative business may be conducted equally effectively through legislative methods as through executive methods. On this point with respect to executive reorganization, see Leiserson, loc. cit., supra note 18.

21 For a discussion of some of the implications by a student of philosophy, see Wayne Leys, A. R., “Ethics and Administrative Discretion,” Public Administration Review, Vol. 3 (1943), pp. 10 ff.CrossRefGoogle Scholar

22 This point has been greatly illuminated by Bentley, Arthur F., The Process of Government (Chicago, 1908)Google Scholar, a work long overlooked (republished, Bloomington, Ind., 1935).

23 A persuasive elaboration of this relationship in the area of the national government is to be found in the work of the President's Committee on Administrative Management (see supra note 19) and several of the special studies published under its sponsorship.

24 For a discussion of the shift in constitutional influence upon the affairs of the nation from the legislative and judicial branches to the executive branch, especially in the context of wartime experience, see Corwin, Edward S., Total War and the Constitution (New York, 1947)Google Scholar.

25 In the light of the President's rôle as national leader, the establishment of his Executive Office was a development of truly political importance. As head of the executive branch, with its informational and research facilities, he has at his direct command those means of institutional intelligence and administrative planning that are required in the formation of a balanced program to be considered and acted upon by Congress. On the state of growth of his Executive Office, see Marx, F. Morstein [ed.], “Federal Executive Reorganization Re-examined: A Symposium,” in this Review, Vol. 40 (1946), pp. 1124 ff.Google Scholar

26 On the legislative theory that went into the making of the national budget system and on the ramifications of program-planning in the channels of the budget process, see Marx, F. Morstein, “The Bureau of the Budget; Its Evolution and Present Rôle,” in this Review, Vol. 39 (1945), pp. 653 ff., 869 ff.Google Scholar

27 Holcombe, Arthur N., ”The Changing Outlook for a Realignment of Parties,” Public Opinion Quarterly, Vol. 10 (1946), p. 456CrossRefGoogle Scholar.

28 The emerging trend toward the service state in the United States as a characteristic of our century was first commented upon by White, Leonard D., Trends in Public Administration (New York, 1933), p. 341Google Scholar.

29 Awareness of this tendency has led to conscious emphasis upon new forms of civic participation in the administrative process at the “grass roots” of politics. For a practical demonstration of what can be done along these lines, see Lilienthal, David E., TVA: Democracy on the March (New York, 1944)Google Scholar.

30 “Active Democracy—A Local Election,” Planning (PEP), No. 261 (London, January 24, 1947), p. 11Google Scholar.

31 Joad, Cyril E. M., The Adventures of the Young Soldier in Search of the Better World (New York, 1943), p. 111Google Scholar.

32 Cooke, loc. cit., supra in note 13, p. 89.

33 It has required the experience of World War II to bring this problem into the orbit of governmental interest. For the wartime record, see Baxter, James P., Scientists Against Time (Boston, 1946)Google Scholar.

34 See supra under II.

35 The process of achieving such synthesis of all relevant interests is basically identical with Mary Parker Follett's concept of “integration,” in contrast with the uncreative truce between colliding interests which she called “compromise.” For an elaboration, see her collected papers available in Metcalf, H. C. and Urwick, L. [eds.], Dynamic Administration (New York, 1941)Google Scholar.

36 A striking illustration of the ethical conflicts arising under such circumstances is provided in a first-hand report about German university life under Nazi auspices, which describes the peculiar rôle of the career officials in charge of university affairs at the ministerial level. The author suggests that the services of these officials in “most of the German states in upholding German learning deserve more grateful recognition. Their own scientific education had filled them with profound reverence for the great traditions of German university life. With tenacious, patient attention to detail, these bureaucrats constantly erected new dikes against the flood of Nazism. A hundred times their masters compelled them to make bad appointments and to enforce evil measures, but they were always concerned to prevent the inevitable damage from becoming too great. Not the least reason for their opposition to the Party leaders—district and regional leaders, leaders of the teachers' unions, and more of the same—was that these politicos were completely lacking in expert knowledge and, indeed, in any familiarity with learning, for none of these propagandists had really studied, even though, for a time, they may have attended the universities and there played the rô1e of political noise-makers. In fact, the less they knew about learning, the more arrogant they were. The humiliations which the German Ministers of Education had to take from the Party leaders are unbelievable. This was true even of Rust, 4he Reich Minister of Education, to whom Hitler paid as little attention as he did to Kerrl, the Minister of Religion. Their arrogance caused such exasperation that frequently the ministers formed alliances with the professors in order to push through the ministerial measures against the Party officers.” Ritter, Gerhard, “The German Professor in the Third Reich,” Review of Politics, Vol. 8 (1946), pp. 249–250CrossRefGoogle Scholar.

37 A very illuminating treatment of the protective mechanisms of institutional solidarity is contained in a piece of satirical writing that poses as a historical account, written in 2048, of British civil service development. To quote the account: “The next important precedent was set in 1973. Some difficulty had been experienced before then in drawing the exact line between what a Minister could and could not do without advice, and the sheer pressure of necessity had led to a progressively greater invasion of what had hitherto been regarded as Ministers' private lives. This applied particularly to the company they kept, by which their confidence in their official advisers might possibly be affected. Ministers' wives could hardly be selected for them by their Departments, since most of them had acquired a wife by the time they arrived at office and the Civil Service could therefore merely insist that the wives should share their husbands' willingness to lead a useful life in the public eye without ever giving evidence of any opinions that differed from those of their husbands' advisers. Whether, if a Minister's wife did not observe these limitations and the Minister was officially advised to divorce her, he would be constitutionally bound to accept advice so tendered is an interesting speculation for which, happily, no precedent gives a clue to the answer. But with more casual acquaintances the case was obviously different, and the matter came to a head in 1973 when the Permanent Secretary to the Ministry of Books and Publications was compelled to take formal notice of the fact that his Minister was seeing altogether too much of a young woman who was not an Established Civil Servant, and had actually induced him to read a book which had not reached him through official channels. The Permanent Secretary was deferential, but firm, and was supported by his colleagues. The Minister did, for a brief moment, contemplate carrying on without advisers, but this, through sheer shortage of personnel, might have involved all the hideous dangers of permitting the newspapers to appear without a competent prior censorship of their contents, since they could hardly be kept waiting more than the customary ten days. It was, therefore, an easy task for the aged Duke of Montgomery (who, with a quarter-century of political experience added to his military fame, was by now the elder statesman of the country) to convince the Minister that he had no alternative to capitulation. This affair, as if to emphasize the continuity of British traditions, has become known as the Second Bedchamber Crisis.” Editorial, “The Twilight of Ministers,” Economist, Vol. 152 (Jan. 25, 1947), p. 135Google Scholar.

38 Kirchheimer, loc. cit., supra in note 11, p. 373.

39 On the scope of the public servant's privacy, especially with respect to the political process, see Sayre, Wallace S., “Political Neutrality,” in Marx, F. Morstein [ed.], Public Management in the New Democracy (New York, 1940), pp. 202 ff.Google Scholar

40 Cooke, loc. cit., supra in note 13, p. 92.

41 MacIver, Robert M., The Web of Government (New York, 1947), pp. 415–416Google Scholar.

42 Holcombe, loc. cit., supra in note 27, p. 468.

43 This inference is vigorously supported by all students of modern government who have essayed an appraisal of the growth of the administrative establishment. For a particularly convincing elaboration, see Appleby, Paul H., Big Democracy (New York, 1945)Google Scholar.

44 Cummings, Homer S. and McFarland, Carl, Federal Justice (New York, 1937), p. 511Google Scholar. It should perhaps be added that in the context of the quotation the “choice” posed is apparently merely intended to indicate the opposite pulls, but not the official's freedom to disregard the law.

45 Coy, Wayne, “Basic Problems,” in this Review, Vol. 40 (1946), p. 1128Google Scholar.

46 Ibid., p. 1129. The author points out that “facilities on the level of the departmental leadership for bringing about effective assertion of an agency-wide point of view are still under-developed.” Ibid.

47 Price, Don K., “Democratic Administration,” in Marx, F. Morstein [ed.], Elements of Public Administration (New York, 1946), p. 78Google Scholar.

48 For a searching inquiry into the operation of pressure politics in the administrative sphere, see Herring, Pendleton, Public Administration and the Public Interest (New York, 1936)Google Scholar. See also Chase, Stuart, Democracy Under Pressure (New York, 1945)Google Scholar.

49 There is room for differentiation, of course, between such narrowly utilitarian bargains and the official's pursuit of general public policy. An illustration is supplied in the following remarks of a high federal official taken from a recent graduation address at the Army's Command and General Staff School: “Perhaps it is fair to say that the world today is living in a sort of international feudalism. The federation will be a long and painful process. In the meantime, we must this time keep the peace, and the best assurance to that end is the maintenance of adequate military strength. This is the story which must be told to the American people. This is the story which you all should quietly but effectively take from the camps and airfields into the towns and cities.” Symington, W. Stuart, “Teamwork for Defense,” Military Review, Vol. 26 (Oct., 1946), p. 12Google Scholar. It is at the same time clear how serious such mobilization of administrative views may be when they run counter to the chief executive's program or to general policy, reflecting solely the self-interest of individual departments or even bureaus within departments. See also Col. Guy V. Miller, “Community Relations and the Army Advisory Committees,” ibid., Vol. 27 (Aug., 1947), pp. 8 ff.

50 Lochner v. New York, 198 U.S. 45 (1905), pp. 75–76.

51 Op. cit., supra in note 2, p. 213. The quotation is taken from the additional views and recommendations of a minority of the members of the Attorney General's Committee on Administrative Procedure.

52 Senate Committee on the Judiciary, Administrative Procedure Act, Report No. 752, 79th Cong., 1st Sess. (Washington, 1945), p. 31. For the same reason, the Attorney General's Committee on Administrative Procedure quite realistically centered its approach on the procedural methods of government agencies. See supra note 2.

53 On this point, see Fairlie, John A., “Law Departments and Law Officers in American Government,” Michigan Law Review, Vol. 36 (1938), p. 913CrossRefGoogle Scholar; Marx, F. Morstein, “The Lawyer's Rôle in Public Administration,” Yale Law Journal, Vol. 55 (1946), p. 516CrossRefGoogle Scholar.

54 Our scientific knowledge of so fundamental a process as cooperation is very meager—a striking comment on industrial society with its large-scale cooperative structures. One can readily agree with Mary Parker Follett, who said of a closely related process, “Perhaps the greatest of obstacles to integration is our lack of training for it.” Op. cit., supra in note 35, p. 48.

55 Finer, Herman, Road to Reaction (Boston, 1945), p. 52Google Scholar. Perhaps one should add that the test of constructive public policy is the degree to which it succeeds in securing inclusiveness in interest recognition, at least in the longer run.

56 Attorney General's Committee on Administrative Procedure, op. cit., supra in note 2, p. 43.

57 Ibid. It should be pointed out, however, that the Attorney General's Committee took a favorable view of the use of informal procedure in dealing with the large majority of administrative actions affecting the individual.

58 60 Stat. 237.

59 See supra under v.

60 Kirchheiraer, loc. cit., supra in note 11, p. 365.

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