Volume 1996    Issue 1

Do We Have Enough Ethics in Government Yet?: An Answer from Fiduciary Theory

Kathleen Clark^*

In recent years, the United States has witnessed a parade of ethics scandals that have brought down many government officials who have been accused of misusing public office for private gain. Congress has responded to each new scandal by enacting new, tougher ethics regulations, perhaps believing that the errant government official would not have gone wrong if only stricter rules had been in place. As a result of these ad hoc responses to scandal, ethics regulation is now "a complex and formidable rule structure, whose rationale is increasingly obscure." One way out of this morass is to find an acceptable benchmark for measuring the adequacy of ethics regulations. The fiduciary obligation provides an appropriate benchmark for protecting the public trust. In light of fiduciary theory, this article evaluates the current regulations in four areas: government employees' receipt of gifts, their financial interests, their receipt of compensation for nonexpressive activity, and their receipt of compensation for expressive activity. When evaluated in light of fiduciary theory, Congress has, in general, underregulated its own activities and overregulated the activities of the executive branch. But recent reforms, particularly in the area of gifts, suggest that Congress may have begun to apply the fiduciary theory standard to its own activity.

* Assistant Professor of Law, Washington University. B.A. 1984; J.D. 1990, Yale University.

I would like to thank Susan Appleton, David Becker, Kathleen Brickey, Whit Cobb, Deborah DeMott, John Dzienkowski, Robert Flannigan, Tamar Frankel, Stephen Gillers, William Hodes, Katherine Goldwasser, Daniel Keating, Richard Lazarus, Ronald Levin, Ronald Mann, Thomas Morgan, Beth Nolan, Nancy Rapoport, Robert Roberts, Theodore Schneyer, Robert Thompson, Laura Underkuffler, Gregory Walden, Peter Wiedenbeck, and Fred Zacharias for their valuable comments on earlier drafts of this article. I also want to thank my partner, Alma I. Ton, and my parents, Mary and George Clark, for their love and support. Andrea House, Christie Lefevre, and Tom Volz provided research assistance on this project.