Nussbaum Had a Point on `Duty to Serve'

THE defense given by former White House Counsel Bernard Nussbaum of the advice he gave to Roger Altman during their now-infamous White House meeting on Feb. 2 has a lot more merit than was acknowledged by the Senate Banking Committee late in the evening on Aug. 5.

Mr. Nussbaum was sharply criticized by the Senate Banking Committee for advising Mr. Altman, the acting head of the Resolution Trust Corporation and deputy secretary of the Treasury, not to recuse himself from matters dealing with Madison Guaranty Savings and Loan and the Whitewater affair. Since Altman had neither a legal nor an ethical duty to recuse, or withdraw, himself from consideration of these matters, Nussbaum advised Altman to carry on with his responsibilities.

Members of the Senate Banking Committee didn't agree with Nussbaum's advice, to put it mildly. ``You crossed the line,'' said committee chairman Donald Riegle Jr. (D) of Michigan as he scolded Nussbaum. ``You crossed it in a case that involved the president.'' Senator Riegle's position was echoed by nearly every member of the committee regardless of party affiliation. Only Sen. Christopher Dodd (D) of Connecticut seemed to find some merit in the principle Nussbaum was defending.

True enough, Nussbaum probably shouldn't have been the one to give Altman, as head of an independent regulatory agency, this advice. Nor should Altman have sought out Nussbaum for advice on his decision about recusal - for which, in addition to ``Northing'' (the new buzzword for ``lying to'') the Senate Banking Committee, Altman will probably lose his job.

Nevertheless, the reason Nussbaum gave for his position on recusal merits serous consideration and discussion by Congress. Nussbaum explained what he did by advancing this principle: If Altman, as a government official, has neither a legal nor an ethical obligation to recuse himself from making a decision, then he is duty-bound to make that decision. This principle was rejected by nearly every senator there.

Instead, senators maintained that the public perception or appearance of a conflict of interest was sufficient to require recusal, regardless of any legal or ethical obligations. Altman had received a number of formal opinions, from various government entities charged with rendering such advice, stating that he had neither a legal nor an ethical obligation to recuse himself from matters involving Whitewater and Madison.

Nevertheless, members of the Senate Banking Committee believe he should have recused himself anyway because: 1) he is a friend of the president; and 2) he was appointed to his positions by the president.

This is a high standard indeed, one that is very difficult to put into operation with even a modicum of objectivity and that is fraught with problems for the daily operation of government.

I seriously doubt, for example, that the appearance standard is practiced with regularity by any member of the Senate or the House. How many times has a senator recused himself or herself from a decision involving a major campaign contributor? Not many. Yet the fact that millions of dollars flow each year to senators from various political-action committees creates the strong public appearance that the entire institution is up for sale to the highest bidder, whether or not this perception is accurate. In 1991-92 alone, incumbent senators running for reelection received more than $36 million in PAC contributions.

But when is the last time a senator recused himself or herself from voting on an issue directly impacting any of these organizations? This is as rare as a senator who refuses to accept PAC contributions in the first place.

And why should they? Senators will say that they are able to make the right decision for their constituents regardless of how their decisions appear or are perceived. Indeed, as implied by Nussbaum, senators, like all members of the government, have a duty to make such decisions, on health care, educational policy, gun control, land use, tort reform, labor management, or abortion funding, regardless of contributions taken from groups with an interest in such matters or longstanding friendships with interested parties.

Public perception and appearance are highly problematic as standards for recusal precisely because perceptions can be wrong and appearances inaccurate. Perceptions and appearances are amenable to manipulation by political parties, interest groups, radio talk-show hosts, newspaper editorials, and TV reporters, among others. They are not a reliable standard against which to assess the need for recusal in any matter on which a government official has a duty to act. To apply such a standard universally would shut down government decisionmaking.

It wouldn't be unusual for Congress to apply a standard to some other governmental entity that it has no intention of applying to itself. But before the ``appearance'' standard becomes the recusal coin of the realm, the Senate would be well-advised to consider the practical impact of its defense and what it could mean for the daily business of the government. The Opinion/Essay Page welcomes manuscripts. Authors of articles we accept will be notified by telephone. Authors of articles not accepted will be notified by postcard. Send manuscripts to Opinions/Essays, One Norway Street, Boston, MA 02115, by fax to 617 -450-2317, or by Internet E-mail to OPED@RACHEL.CSPS.COM.