Judging by Appearances: Professional Ethics, Expressive Government and the Morality of How Things Seem

This article concerns society's ambivalence about "appearance of impropriety" standards for public officials and professionals. On the one hand, in order to maintain a high standard for official conduct, we prohibit not only corrupt actions but also actions that resemble corrupt actions so that by building a prophylactic wall around the prohibited conduct we insure that official conduct is especially pure. In addition, appearance standards are defended on the grounds that they are important to maintaining public trust in elected officials, judges and professionals. Since ordinary people can only assess actions on the basis of information that is generally available, the public official or professional must take care to ensure that his public actions appear proper. But these protections may backfire. Rather than providing a firewall against corruption and self-dealing, the appearance standard may encourage public officials and professionals to avoid merely the appearance of wrongdoing. Moreover, by widening the range of improper actions  by including those that appear improper  there may be more ethics-related inquiries and prosecutions which, ironically, may itself erode public confidence in institutions by making it seem that there is far more corruption than was ever thought. Whether or not appearance of impropriety standards achieve their desired ends is an important empirical question. However, it is not the question I address in this paper. Instead, this paper considers whether there are different kinds of reasons that support prohibitions on the appearance of wrongdoing that do not depend upon controversial empirical claims. But first, why address this question here? What is the relevance of the reasons supporting appearance of impropriety standards to the question of the moral and legal significance of the expressive dimension of governmental action? While there are importance differences between a) appearing to do wrong and b) expressing a constitutionally problematic meaning, which I will elaborate below, there are important similarities as well. First, in each the focus of attention is on the external or public manifestation of something non-public (because inaccessible or internal). Second, in claiming that both matter morally, one asserts that actors bear moral responsibility for how their intentions are instantiated in action. And third, both recognize the relevance of the action's audience in determining its permissibility. There are differences as well. Prohibitions on appearing to do wrong presuppose a distinction between the appearance and the reality. Appearing to do wrong is to appear to do some independently defined wrong action. The philosopher Julia Driver uses the helpful terms "mimetic" and "non-mimetic" wrongs. The mimetic wrong is wrong, if it is, in virtue of its resemblance to a non-mimetic wrong. The non-mimetic wrong is wrong, if it is, "for reasons other than resemblance to something immoral." In the case of the expressive dimension of state action, by contrast, appearance and reality coalesce. For the Equal Protection expressivist, like myself, racial segregation is wrong and violates that Clause, even when it does no tangible harm, because it expresses denigration. How the action appears (denigrating) and how it is (denigrating) are the same. Moreover, appearance of wrongdoing prohibitions address instances where the observer mistakes the true nature of the action. The mimetic wrong is wrong, if it is, in virtue of someone mistaking it for the non-mimetic wrong. The limitations on the observers ability to know are emphasized along with the likelihood of misjudgment or confusion. In the context of expressive governmental action, by contrast, we need not presuppose this confusion. Given both the similarities and the differences just mentioned between the appearance of impropriety and the expressive component of state action, is there a reason to use a discussion of one (appearance of impropriety) to enlighten the other (the expressive dimension of state action)? I think so. First, the question whether appearance of wrongdoing ought to matter and the question whether the expressive dimension of state action ought to matter are importantly similar in their focus on the actor's responsibility for the external manifestation of his actions. Second, the fact that the appearance of impropriety rests on the observers mistake while no mistake is presumed in the context of expressive action strengthens the case for the usefulness of the inquiry envisioned here. If there are good moral reasons for the actor to be responsible for how his actions are likely to be perceived when the perception is grounded on mistake, it would seem that there would be even better reasons for the actor's responsibility for what his actions convey when the observer mistakes nothing. Thirdly, appearance of impropriety standards are most commonly applied to public officials, legislators and judges. While they are controversial, they are also extremely common. Since our inquiry at this Conference focuses on the moral and legal significance of the expressive dimension of governmental action, an analysis of the moral grounding of appearance of impropriety standards may prove fertile ground.