Chapter 4 Regulatory Design: Statutes and Regulations

The federal system of regulating the conduct of public officials – government ethics – is designed around substantive law that began with the Founding and that has evolved over 150 years. The body of law that regulates government ethics is well-defined and consists of:

• Provisions of the Constitution, including the Emoluments Clause and the Appointments Clause
• Statutes, including provisions of the Criminal Code, the Hatch Act, and others
• Executive Orders
• Various regulations, many issued by the Office of Government Ethics (OGE) and other administrative agencies
• Rulings by OGE and opinions issued by the Office of Legal Counsel of the Department of Justice
• Unpublished but publicly available ethics agreements, waivers, and other materials

There is relatively little case law interpretation, especially as compared with other regulatory regimes, although recently the Supreme Court has weighed in, especially in connection with application of the Criminal Code to certain types of conduct of public officials.

This chapter includes the key authorities regarding this regulatory system.

The regulatory design of government ethics shares features with other “code” systems -- securities regulation, bankruptcy law, corporate law, tax, and others. The design also shares some of the defects of other regulatory systems. These design defects include the overlap between rules-based and principles-based systems, substantial regulatory costs and trade-offs concerning the goals of government, rules that are over and under inclusive, and others. An understanding of these features and flaws is important to the ongoing project of improving the government ethics system.