Speech Ethics

February 13, 2017
posted by Bob Bauer

The Senate’s invocation of Rule 19 against Senator Warren could not have been more curiously timed. Supposedly concerned to uphold senatorial debate standards, to keep out the nasty stuff, Senate Republicans disqualified Warren from further debate on the Sessions nomination because she read from Coretta Scott King’s 1986 statement opposing Mr. Sessions’ elevation to the bench. Meanwhile, the President routinely tweets out abuse of political adversaries, in the courts or (as in the case of John McCain) in the Congress.

Of course, the President is not bound by the Congressional rules and traditions. But that is the interesting question: if there are standards to be applied to democratic debate, especially to the remarks of senior elected officials, why should those standards be limited to legislative speech? And, if extended to executive branch speech, how?

It might be thought that standards of this kind are significant only in the management of a deliberative body: their function could simply be to avert fist fights on “the floor,” where debate takes place, or, short of violence, to keep order. There is more to them than just this functional administrative purpose. When the Senate censured Joe McCarthy in 1954, the politics were complex, but the Resolution noted his verbal abuse of adversaries. It cited his accusations that the Senate was convening a “lynch-party” against him, that a senior Member directing the Select Committee censure inquiry was “cowardly,” and that the Committee was acting as “attorneys-in-fact” for the Communist Party. The Senate applied the severe penalty of censure in part because McCarthy’s vicious speech violated “senatorial ethics” and “tended to bring the Senate into dishonor and disrepute.”

This goal of protecting against institutional disrepute has been reflected for years in the ethics codes of both the House and the Senate.  See, e.g. S. Res. 338, 88th Cong., 2d. Sess. (1964]; House Rule XXIII Cl. 1 (“A Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House.”) Members engaged in abusive and irresponsible speech are not only disregarding some housekeeping regulation, like a prohibition against bringing their dinners into the chambers: They are presumptively acting in violation of their personal ethical obligations. There is no reason why reckless, vituperative speech by executive branch officials would not bring dishonor and discredit to that branch of the Government.

Congress has enacted a Code of Ethics for Government Service , which now governs generally the conduct of executive as well as legislative branch employees. In its current form, it covers all the routine concerns with financial conflict of interest and impartiality in the conduct of public duties. It does not lay down rules for speech, except to counsel that officials may not make “private promises…binding upon the duties of office.” It would not be hard to import ethical standards into the Code like those the House and Senate have adopted to protect against conduct, including grossly irresponsible and disparaging speech, that tend to reflect poorly on the institutions.

In McCarthy’s case, the criticism of his wild excesses was directed at both his abusiveness and his utter disregard of facts. This poisonous combination was concocted out of the basic ingredients of vilification and falsehood. The lies advanced the cause of vilification; the vilification helped dramatize and disseminate the lies. Standards constructed to provide guidance, and to serve as point of reference in judging the ethics of speech, would pick up on both elements–willful indifference to facts in the service of denigration.

Free speech advocates might blanch at the prospect of fresh grounds for the policing of what is said, and how, on sensitive political topics. It is not really new ground. The House and Senate have these standards, even if it takes a McCarthy to move the bodies against a Member, or, apparently, a lesser complaint to trigger Rule 19.  Moreover, no one would suggest that the enforcement mechanisms would be the same for both branches. Most of the time, for both, the voters remain the ones empowered to make the necessary and most consequential judgments.

But there is value and accountability in setting a standard for the executive branch, and there is evidence growing in volume that it could be useful to have it. Congress could make this happen, if it is really worried about the quality of what is nowadays called democratic discourse.

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