Scoop Election 08: edited by Gordon Campbell

Gordon Campbell on the ethics of taping politicians

August 7th, 2008

Pretty doggedly, the mainstream media have stuck to their guns and kept the storyline on the secret tapes fiasco firmly focused where the National Party would prefer it to be – on Who Taped It, rather than (a) what is on the tapes or (b) what such content might indicate about the mindset and agenda of the likely next government.

Bear with me. I know, there is nothing more unedifying than journalists banging on about ethics. A profession that habitually relies on stolen or leaked documents and emails, or on sources covertly dobbing in their superiors is on shaky ground when it pontificates about the ethics of others. Still, I can’t help thinking : is it more unethical for a delegate to tape someone speaking candidly – or a for a political party to dedicate its campaign efforts to not being candid, and thereby assisting the public to deceive itself ?

After all, the public interest – not property rights – lies at the core of this issue. A defining aspect of 21st century politics is the pervasiveness of political spin, and the tactics of media manipulation by political parties. Frankly, if a lone activist with a $200 dictaphone can defeat the massed phalanxes of p.r. bullshit, and thereby give the public a clearer idea of what the next government may actually do when elected, then surely that’s all to the good – isn’t it?

Its not as if National hasn’t enjoyed an armchair ride from the media up to and including last weekend’s party conference. Editorialists have been mute about the party’s tactical reluctance to reveal its plans for the country. Remarkably, the mainstream media has also been silent about the wisdom of National’s deliberate plan to increase our foreign indebtedness ( to pay for tax cuts ) at a time when New Zealand is already running a perilous current account deficit of 7.8 % of GDP. One can only imagine the editorial thundering if the government was using this foreign capital to say, build affordable housing. No, the country would certainly be deemed unwise to go further beyond its means for that purpose.

So far, the public has been the winner. In the wake of the taping, National’s response this week has actually been quite informative. We now know more about what it plans to do about Kiwibank, Working for Families and Kiwisaver than we did before the tapes were leaked. This has been a big advance towards an informed electorate, in that the tapes and their aftermath have told us far more than the National Party’s skeletal policy releases.

In some respects, National politicians brought this fiasco upon themselves, by being so in thrall to their marketing strategists. If National wouldn’t tell the public what it had in mind, then it was leaving it up to some enterprising soul to try and find out. What the public have found out – and what the Bill English, Lockwood Smith and Nick Smith tapes have in common – is that National truly believes that its real intentions are politically toxic, and therefore, it is prepared to wait patiently and eventually use the machinery of government to make those intentions more palatable to the public.

This is deeply ironic – or hypocritical. Remember, many of National’s attacks on the Electoral Finance Act in general and on Labour president Mike Williams in particular were based on the evils of an incumbent government using the machinery of state to peddle its messages. Yet that is precisely what Lockwood Smith had in mind when he said on tape :

There’s some bloody dead fish you have to swallow to be able to get into government to do the kinds of things you want to do… and you have to balance up what really matters. If you try to do everything differently you’ll scare the horses and under MMP it’s very hard to win. Once we gained the confidence of the people, we’ve got more chance of doing more things.
We may be able to do some things we believe we need to do, perhaps go through a discussion document process. You wouldn’t be able to do them straight off… I’m hoping that we’ll do some useful things that way, that might not be policy right now.

Hmmm. Don’t tell people now. Wait until you’re in power. Then use the platform of government to do what you REALLY had in mind all along, but didn’t dare risk saying out loud because people wouldn’t have voted for you in the first place. Isn’t that a bit umm… unethical ?

Certainly, it seems more unethical than taping a conversation with a politician who freely volunteers something that is in the public interest, and that they would otherwise deny. And is taping such a conversation more or less ethical than National’s subsequent response to date – which has been to publicly accuse Labour of the taping, before even looking at the security tapes to discern who actually did it?

Ethics. There are various levels involved. Level one I suppose, entails a tit for tat argument. Some enemy taped and broadcast the two Smiths and English in private conversation. Some enemy also taped and broadcast Mike Williams speaking privately this year at the Labour Party annual conference. Moreover, TVNZ taped and broadcast Finance Minister Michael Cullen speaking in what he thought was a not-for-broadcast situation.

I’m not offering an ‘ everyone’s doing it, so it all balances out in the wash’ argument. Rather, I’m saying that such taping now happens and was happening before the fateful cocktail party last weekend. Therefore, caveat emptor is the only safeguard. Outside the privacy of their own homes and offices, politicians need to watch what they say. Especially if they don’t want the public to know what their intentions are.

Ethics, level two. Was the taping illegal ? According to TV3 – which has been the conduit of the tapes into the mainstream – the taping was not illegal, since the person authorizing the subsequent broadcast was part of the conversation. National has little hope of succeeding on the trespass front either. If paying the $170 conference tab was all that it took to get into the cocktail party, and anyone could buy such a ticket – where’s the trespass?

Was it ethical not to let the politicians involved know that they were being taped ? No, it wasn’t. At least, not unless the public interest involved was sufficient to justify the means, and not unless there was no other possible avenue to get the information. Personally, I think both those extenuating circumstances existed with regard to the cocktail party taping.

Ethics, level three. Did English or Lockwood Smith say anything that contradicts National’s public statements about say, privatization? No. National had said that no privatizing of state assets would occur during its first term, and English was more or less saying the same thing – about Kiwibank at least. However, that really wasn’t the ethically dubious part of the tape.

Kiwibank was only one example of a wider policy – extolled by English, Lockwood Smith and Nick Smith in virtual unison – of not advising the public pre-election, of National’s post-election intentions. In that respect, National is operating in the realm of what lawyers might call ‘non–lying deception’ and what the Catholic Church – to which English owes some fidelity – would call ‘a sin of omission.’

In his article Lying, Misleading and Falsely Denying : How Moral Concepts Inform the Law of Perjury, Fraud and False Statements ( Hastings Law Journal, Vol 53, 2001) ) Rutgers Law Professor Stuart P. Green explains how ethical distinctions [ the ones relevant to the English/Smith tapes ] play out in the area of criminal law.

Based on what Green says, the three National Party politicians concerned could not be accused of of perjury, or anything else that entails lying. However, a process of facilitating self deception carries a legal and moral stigma that could, in other contexts, render one liable for say, a mail fraud conviction. As Green puts it :

For example, a defendant cannot be convicted of perjury or false declarations unless it can be shown that she has made an assertion that is “literally false”-i.e.. that she has lied. { And National did not lie ] By contrast, conviction for crimes such as mail fraud, securities fraud, and false pretenses requires only that the defendant have engaged in conduct or speech that is “deceptive”- i.e., there is no requirement either that there be an assertion. or that it be literally false.

Non-lying deception entails the fostering of an untrue perception, when one had the means and the opportunity to correct it. It is the enabling of people to draw the wrong conclusion, for one’s personal gain. Yes, that does sound a lot like what Bill, Lockwood and Nick were advocating as a wise pre-election gambit for National.

In this respect, the Catholic Church distinction between “sins of omission” and “sins of commission” is quite illuminating, when applied to the taping controversy. In brief, sins of commission are those involving deliberate action – say, with the altar boy. Sins of omission occur for instance, when you culpably omit the action or information that allows a wrong to be committed, or perpetuated. As the http://www.newadvent.org/cathen/11251b.htm Catholic Encyclopedia says :

“Omission” is here taken to be the failure to do something one can and ought to do. If this happens advertently and freely a sin is committed. Moralists took pains formerly to show that the inaction implied in an omission was quite compatible with a breach of the moral law, for it is not merely because a person here and now does nothing that he offends, but because he neglects to act under circumstances in which he can and ought to act.

Is it a sin of omission to tell voters only what you want them to know, and thus empower yourself to do something afterwards that those same voters may well not have condoned, if only you’d fully informed them beforehand ? I think so. If National insist on getting on a high horse about ethical behaviour, then what English and the two Smiths were advocating on those tapes seems clearly to amount to non-lying deception, and is thus a sin of omission. Of course, it is now up to English as to whether he feels obliged to tell that sin in the confessional box – where he should be safe enough from being taped.

ENDS

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