[Congressional Record Volume 143, Number 142 (Tuesday, October 21, 1997)]
[Senate]
[Pages S10903-S10904]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      FORWARD TO ETHICS IN LAW AND POLITICS BY SENATOR PAUL SIMON

 Mr. DURBIN. Mr. President, our friend and former colleague in 
this body, Paul Simon, has always been a man of exceptional integrity 
who has demonstrated exemplary leadership on national issues. He 
continues to contribute to the national debate as the director of the 
Public Policy Institute at Southern Illinois University in Carbondale.
  Paul recently authored the foreword for the Loyola University of 
Chicago Law Journal on the subject of ethics in law and politics. While 
the Senate continues to investigate and debate the conduct of our 
federally elected officials, Paul's foreword to this journal provides 
valuable insight about political ethics and the public trust which I 
would like to share with my colleagues.
  I ask that Senator Simon's foreword be printed in the Record.
  The forward follows:

  [From the Loyola University of Chicago Law Journal, Volume 28, 1996]

                  Foreword--Ethics in Law and Politics

                        (By Senator Paul Simon)

       Paul Simon was a Democratic member of the United States 
     Senate from the State of Illinois from 1985 to 1996. He has 
     also served as member of the United States House of 
     Representatives (1975-1984), Lieutenant Governor of Illinois 
     (1969-1972), member of the Illinois Senate (1963-1968), and 
     member of the Illinois House of Representatives (1955-1962). 
     In addition to his extensive years of service in the 
     political arena, Senator Simon is the author of numerous 
     works, including Lincoln's Preparation for Greatness (1965), 
     The Once and Future Democrats (1982), and The Glass House, 
     Politics, and Morality in the Nation's Capitol (1984).


                            I. Introduction

       I am pleased to introduce Loyola University of Chicago Law 
     Journal's special symposium issue on Legal Ethics. I may not 
     be the obvious choice for this honor since I am not a lawyer. 
     I am, however, the husband of an attorney and the father of 
     another; moreover, I work everyday with lawyers and have 
     drafted far more legislation than most attorneys in the 
     profession.
       My years in state and federal politics have also provided 
     me with empathy for the legal profession. After all, 
     politicians and lawyers share at least one uneviable 
     distinction--they are both roundly criticized in America 
     today for their ethical shortcomings. The public's distrust 
     of lawyers and politicians can be traced to a common cause--
     to a perception that both professions have failed to live up 
     to the full range of their responsibilities, and particularly 
     to a sense that both too often see their obligations in terms 
     of temporarily pleasing constitutents or clients and not 
     enough in terms of serving the national interest and the 
     public good. This pervasive attitude is harmful, not only to 
     the public standing of lawyers and politicians, but--more 
     importantly--to the well-being and moral strength of the 
     nation itself.


                 ii. public trust and political ethics

       For many years, I have warned of the increasing influence 
     of public opinion polls, focus groups, and political 
     consultants in Washington. Office-holders have become too 
     quick, when faced with issues of immense public importance, 
     to stick their finger to the wind to see which way the public 
     passions are blowing. It is easy to understand this 
     temptation. As a Senator, I know how appealing it is to do 
     the popular thing. Most elected officials enjoy their jobs. 
     We are treated with respect; we are listened to and 
     applauded; and we make decisions about matters which effect 
     the lives of thousands, if not millions, of people. 
     Naturally, we dislike casting votes that might jeopardize our 
     positions. And so political self-interest makes the office-
     holder excessively sensitive to his constitutents' desires.
       Certainly, the desire to please one's constituents is not a 
     bad thing in and of itself. Public accountability and 
     constituent service are a vital part of the democratic 
     process. But the legislator's duty is greater than simply 
     serving his or her constituents' immediate interests. A 
     representative also has an obligation, as James Madison 
     wrote, to ``refine and enlarge the public views,'' to use 
     independent judgment, and to serve the public good.\1\ Edmund 
     Burke declared, in his famous speech to the electors at 
     Bristol, that ``[y]our representative owes you, not his 
     industry only, but his judgment; and he betrays, instead of 
     serving you, if he sacrifices it to your opinion.'' \2\
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     Footnotes at end of article.
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       Burke sometimes spoke as if he believed elected officials 
     should concern themselves solely with the national interest 
     and not at all with local affairs.\3\ I certainly would not 
     go that far. Rather, I believe representatives have two 
     principal obligations--one to their constituents and one to 
     the broader public good. Fortunately, those obligations do 
     not generally conflict, and especially in matters of vital 
     national significance, they are often closely aligned. 
     Nonetheless, when they diverge, as they inevitably do at 
     times, conscientious politicians face an ethical dilemma--how 
     to balance the voice of their constituents with the call of 
     the conscience.
       Representatives must resolve this tension as best as they 
     can. It is reasonable, in my opinion, for representatives to 
     defer to their constituents' desires when an issue is not 
     clear-cut and the stakes are not vital. But in fundamental 
     cases where justice is clear, politicians must have the 
     courage to vote their conscience. The lawmaker must recognize 
     this simple truth--that some things are more important than 
     being reelected.
       The obligation to exercise independent judgment--rather 
     than to blindly follow public opinion--is strong in cases 
     affecting citizens marginalized by society, such as the poor 
     or minorities. These are people whom the general public is 
     prone to ignore; they are often powerless to defend 
     themselves in the ``court'' of public opinion. Frequently, 
     the legislator's independent sense of justice is all that 
     protects the underprivileged members of society from neglect 
     or isolation. If representatives are to be worthy of their 
     positions, they must have the courage to fight for the least 
     fortunate, even when doing so in unpopular.
       The passage of the new welfare bill is only the most recent 
     and egregious illustration of Congress' increasing tendency 
     to choose expediency over principle. To be sure, the 
     political calculus in favor of the bill was clear. Welfare 
     has become a dirty word in America today. Proportionately few 
     welfare recipients vote, and the cases where welfare is 
     abused are highly publicized. President Clinton certainly 
     knew which way the political winds were blowing when he 
     signed the bill.
       But ``ending welfare as we know it'' is not a noble goal. 
     ``Ending poverty as we know it'' is, and the latter goal 
     requires genuine welfare reform. But that cannot be achieved 
     without jobs for people with limited skill, without day care 
     for single mothers with small children, and without job 
     training for those who need it. We are pursuing ``welfare 
     reform on the cheap''--but the next generation will find it 
     very expensive. Real welfare reform will take an additional 
     initial investment but, in the long term, will save money, 
     reduce crime, and make America a more productive society.
       The dangerous consequences of the ``welfare reform'' 
     measure have been well publicized. According to the Urban 
     Institute's estimates, the bill will push a million more 
     children into poverty. It will cut food stamps--basic 
     nutrition for the poor--by nearly 20% from already low 
     levels.\4\ This is an unconscionable act, a failure by 
     Congress to meet its essential obligation to protect those 
     who are neglected by society.
       Candidates who yield to public passions and vote for this 
     kind of measure may gain some temporary increase in 
     popularity. But in the long run, citizens perceive the truth. 
     They come to view Washington as an arena for dividing spoils 
     among powerful factions and interest groups rather than as a 
     proper forum for deliberating over the common good. When 
     elected officials follow public opinion at the expense of 
     justice, they ultimately discredit themselves and their own 
     institutions.
       By contrast, candidates who act against public opinion may 
     find themselves penalized in the polls. But my experience is 
     that over time the public comes to respect those men and 
     women of principle who vote their conscience. These 
     politicians gain an unexpected reward: a deep kind of public 
     respect. I had a small taste of this type of reaction in 
     1990, when I was running for reelection to the Senate. 
     Although I voted against the death penalty and spoke about 
     the need to raise revenues--two very unpopular positions--I 
     won the election by the largest margin of any seriously 
     contested campaign for Senator or Governor. Once, in Chicago, 
     a man approached me and said, ``Senator Simon, I don't think 
     I agree with you on anything. But I trust you, and I'm going 
     to vote for you.'' Citizens yearn for candor and for 
     officials they can trust. If all we can give them is blind 
     obedience to current polls, we as public officials have 
     failed our public duties.
       Politicians should be distinguished by their willingness to 
     meet the full ethical obligations of their position--to 
     exercise independent judgment in matters of justice and

[[Page S10904]]

     to act on that judgment, even when it leads to unpopular 
     decisions. Walter Lippmann once wrote that a statesman 
     emerges whenever a politician ``stops trying merely to 
     satisfy or obfuscate the momentary wishes of his 
     constituents, and sets out to make them realize and assent to 
     those hidden interests of theirs which are permanent. . . . 
     When a statesman is successful in converting his constituents 
     from a childlike pursuit of what seems interesting to a 
     realistic view of their interests, he receives a kind of 
     support which the ordinary glib politician can never hope 
     for. . . . [O]nce a man becomes established in the public 
     mind as a person who deals habitually and successfully with 
     real things, he acquires an eminence of a wholly different 
     quality from that of even the most celebrated caterer of the 
     popular favor. . . .''\5\
       Ultimately, the political profession will not redeem itself 
     in the public's eyes until a larger number of its 
     representatives begin to heed the call of their conscience 
     over the call of the polls.


                  iii. ethics and the legal profession

       Unlike the political realm, the legal profession has not 
     always been viewed with the scorn reserved for it today. in 
     words that may seem strange to us now, Alexis de Tocqueville 
     wrote that ``people in democratic states do not mistrust the 
     members of the legal profession, because it is known that 
     they are interested to serve the popular cause; and the 
     people listen to them without irritation because they do not 
     attribute to them any sinister designs.'' \6\ During the last 
     century, however, this picture of the legal profession has 
     too often been replaced by an entirely different one--a 
     picture of lawyers as parasites, hired-guns of large 
     corporations or grasping clients, motivated by greed and 
     neglectful of the public good. The legal industry--and it is 
     an industry--has become increasingly commercialized, with too 
     much emphasis on profits and the bottom line.
       Paralleling this development has been the growth of a new 
     ideology within the legal culture itself, which one observer 
     has called the ``ideology of adversarial zeal.'' \7\ It is 
     more prevalent than it should be. This ideology tells lawyers 
     that they need not concern themselves with the public good or 
     the ordinary obligations of justice. Rather, their ethical 
     obligations are simply to serve their clients' desires and 
     commands.
       When unrestrained, this ideology puts few ethical burdens 
     on the legal profession. Simply stated, it affirms that: 
     ``[l]awyers should not commit crimes or help clients to plan 
     crimes. They should obey only such ethical instructions as 
     are clearly expressed in rules and ignore vague standards. 
     Finally, they should not tell outright lies to judges or 
     fabricate evidence. Otherwise, they may, and if it will serve 
     their clients' interest must, exploit any gap, ambiguity, 
     technicality, or loophole, any not-obviously-and-totally-
     implausible interpretation of the law or facts.''\8\
       Like the norm of constituent service through polling in the 
     political realm, the ideology of adversarial zeal panders to 
     the lawyer's own self-interest. It enables lawyers to ignore 
     the effects of their work on the rest of society--
     considerations that may detract from their profits but should 
     bother their conscience.
       To be fair, the ideology of adversarial zeal may have value 
     in some contexts. For example, in criminal trials, there is a 
     strong temptation to pre-judge a defendant who stands before 
     the court of law, who often is a marginalized member of our 
     society, and who faces the awesome power of the state's legal 
     machinery. Public norms that encourage a fervent defense may 
     help to counteract this pressure and ensure that the 
     defendant has at least one committed defender. That defender 
     may be all that stands between the innocent individual and 
     the loss of his or her liberty.\9\
       The finest legal traditions are followed when attorneys use 
     their zeal and skills in pro bono work, but today the 
     combination of federally assisted legal aid and pro bono work 
     still leaves far too many unserved or under served. In all 
     cases, there is a strong ethical argument for encouraging 
     lawyers to weigh the broader implications of their work for 
     society. Just as the politician must balance his 
     constituent's interests with the public interest, so too must 
     a lawyer balance client service with public service.
       I do not know precisely how that balance should be drawn 
     today in the legal profession. But it certainly means that 
     lawyers--like candidates and office-holders--should hold 
     themselves to a higher standard of conduct than they 
     sometimes do now. It often means that lawyers should resist 
     the temptation to exploit loopholes in the law and instead 
     seek to ensure compliance with the spirit of the law. It 
     certainly means that a lawyer should not engage in a scorched 
     earth approach to discovery in order to overwhelm a less 
     resourceful opponent, even if that means sacrificing a 
     strategic edge in litigation. And it surely means working 
     with the political branches to improve and strengthen our 
     legal system, even if that effort may temporarily work to the 
     detriment of existing clients or the attorney's pocketbook. 
     Self-restraint is essential for a free society to function 
     effectively. We as a society should set our ethical goals 
     high, even the likelihood that many will inevitably fall 
     short.
       We need, in other words, to revive an old ideology that 
     once permeated the legal profession, which Dean Kronman of 
     Yale Law School called the ideology of the ``lawyer 
     statesman.'' \10\ The lawyer statesman understands that 
     professional obligations extend far beyond the client's 
     interests to those of the nation at large, and that the Bar's 
     enormous power in American society comes with a great 
     responsibility to protect the common good. This is vital, in 
     part, because the legal profession plays such a basic role in 
     maintaining the nation's ideals. Professor George Anastaplo 
     has rightly spoken of the Bar's obligation: ``to mediate 
     between popular passions and informed and principled men, 
     thereby upholding republican government. Unless there is this 
     mediation, intelligent and responsible government is unlikely 
     . . . . The bar is, in short, in a position to train and lead 
     by precept and example the American people.'' \11\ Similarly, 
     Justice Louis Brandeis, who lived the noble ideal of the 
     lawyer statesman in his own life, spoke of lawyers ``holding 
     a position of independence, between the wealthy and the 
     people, prepared to curb the excesses of either.'' \12\
       Not least of all, a resurgence in the ideal of the lawyer 
     statesman is important to our nation's future because, in the 
     United States, the legal profession has traditionally been a 
     training ground for many political aspirants. We will have 
     little hope of finding statesmen in the political arena, if 
     we are unable to cultivate statesmen in the legal sphere.
       This is an extraordinarily difficult challenge. To change 
     the culture of the legal and political professions will 
     require a partnership among law schools, bar leaders, schools 
     of political science, and the public at large. But before we 
     can begin this task, we need to understand the reasons an 
     ideology of self-interest has too extensively replaced a 
     commitment to the public interest in both of our professions. 
     We need creative suggestions about how to reverse that trend. 
     For this reason, a symposium issue such as this one is so 
     timely and important to our national welfare. I congratulate 
     the Loyola University of Chicago Law Journal for taking on 
     this fundamental issue.


                               footnotes

     \1\ The Federalist No. 10 (James Madison).
     \2\ Edmund Burke, Election Speech at Bristol (Nov. 3, 1774), 
     reprinted in Burke's Politics 115 (Ross J.S. Hoffman et. al. 
     eds., Alfred A. Knopf, Inc. 1949).
     \3\ For example, Burke also declared in his election speech 
     at Bristol that: Parliament is a deliberative assembly of one 
     nation, with one interest, that of the whole--where, not 
     local purposes, not local prejudices, ought to guide, but the 
     general good, resulting from the general reason of the whole. 
     You choose a member, indeed; but when you have chosen him he 
     is not a member of Bristol, but he is a member of Parliament. 
     If the local constituent should have an interest or should 
     form a hasty opinion evidently opposite to the real good of 
     the community, the member for that place ought to be as far 
     as any other from any endeavor to give it effect.
     Id. at 116 (emphasis in original).
     \4\ David Super, et al., Center on Budget and Policy 
     Priorities, The New Welfare Bill 17-23 (1996).
     \5\ Walter Lippmann, The Essential Lippmann 457 (1963).
     \6\ Alexis de Tocqueville, Democracy in America 275-76 
     (Phillips Bradley ed., 1987) (1835).
     \7\ See David Luban & Michael Millemann, ``Good Judgment: 
     Ethics Teaching in Dark Times,'' 9 Geo. J. Legal Ethics 31, 
     57 (1995) (stating that ``the ideology of adversarial zeal--
     the professional religion of a great many lawyers--tells them 
     that they are morally required to push the edge of the 
     envelope'').
     \8\ Robert W. Gordon, ``The Independence of Lawyers,'' 68 
     B.U. L. Rev. 1, 20 (1988).
     \9\ For a broadly similar point about the ethics of criminal 
     defense work, see Daniel Luban, Lawyers and Justice. An 
     Ethical Study 62-63 (1988).
     \10\ Anthony T. Kronman, The Lost Lawyer: Failing Ideals of 
     the Legal Profession 11 (1993) (quoting Chief Justice 
     Rehnquist).
     \11\ In re Anastaplo, 366 U.S. 82, 110 (1961) (Black, J., 
     dissenting) (quoting Anastaplo's statement to the Bar 
     Committee).
     \12\ L. Brandeis, ``The Opportunity in the Lands'' in 
     Business--A Profession 329, 337-39 (1933), quoted in Robert 
     W. Gordon, The Independence of Lawyers, 68 B.U. L. Rev. 1, 3 
     (1988).

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