Intelligence, Motivation, and Legislative Immunity in a Government Ethics Context

It appeared to be a sign of sheer desperation when former Illinois governor Rod Blagojevich's attorney, in his closing argument last week, used as a defense the fact that Blagojevich isn't "the sharpest knife in the drawer."

But actually this is a real issue, at least in government ethics. It is often hard to tell the difference between incompetence and misuse of office. Take local government attorneys, for example. Many of them consciously let officials off the hook with poor ethics advice, but many others lack both a basic understanding of government ethics and the professionalism to say so. As for local government officials, many of them also make ethical decisions without a basic understanding of government ethics, and without consulting the appropriate individuals or laws.

And let's face it, many elected officials, like Blagojevich, are intellectually challenged. Few people vote for the smarter candidate, and there is a whole industry available to make just about anyone look good. Name and contacts (Blagojevich had one out of two) are far more important than competence.

A Lack of Intrapersonal Intelligence
Even more than intellectual limitations and professional incompetence, however, a lack of intrapersonal intelligence is responsible for unethical conduct. Intrapersonal intelligence is the ability to be aware of one's own emotional states, feelings, and motivations, and to draw on them to understand and guide one's behavior.

Even very intelligent people often are out of touch with themselves, and elected officials are more likely to be out of touch with themselves than others of the same intellectual capacity.

Elected officials tend to have a more developed interpersonal intelligence, that is, the ability to be aware of others' emotional states, feelings, and motivations, and to act upon this knowledge — for example, by influencing people to do what one wants.

Intelligence, Motivation, and Government Ethics
Believe it or not, all this psychological mumbo-jumbo is not only relevant to government ethics, but it is even relevant to legislative immunity in a government ethics context.

A big difference between government ethics as opposed to criminal corruption laws is that knowledge and motivation are irrelevant to government ethics and central to criminal corruption. The difference between a bribe and a gift is that to prove a bribe, you have to prove a quid pro quo, that is, an intent to take money in return for a vote or another action. For a gift to be a violation of an ethics code, no intent, no motivation need be proved.

The dullest knife in the drawer defense doesn't work in a government ethics context. All the dullest knife needs to know is who is the right person to ask for ethics advice, and when to ask for it.

In effect, there is a tradeoff here:  less needs to be proved in government ethics, and penalties are lower. That is why I get so worked up about government ethics codes that make violations a crime. This shows a misunderstanding of the difference between government ethics and criminal corruption, and therefore undermines at least the enforcement side of government ethics.

Motivation and Legislative Immunity
Let's return to that word "motivation." No motivation need be proved in government ethics, as opposed to criminal corruption. And coincidentally, motivation is central to how the Supreme Court has interpreted the constitutional Speech or Debate Clause. Here, for example, is what the Supreme Court said in one of the most important legislative immunity cases, United States v. Brewster, 408 U.S. 501 (1972). This was quoted to me by Louisiana Rep. Arnold, who brought the government ethics legislative immunity case in Louisiana that started the ball rolling (see my 2007 blog post):

It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process, and into the motivation for those acts.

Of course, no one would care if their votes or other acts were mentioned in a court or ethics commission. It is, more than anything, the motivation behind these acts that legislators and the Supreme Court feel must be protected by the Speech or Debate Clause. The Supreme Court interprets this clause as prohibiting the asking of legislators, outside the legislature itself, why they said or did what they said or did.

Government ethics doesn't ask this question. Why did the legislator accept the gift? Who cares. It was prohibited in order to prevent the appearance of impropriety. Impropriety, greed, corruption, conspiracy, fraud — none of these have to be shown or asked about in a classic government ethics matter.

If a local legislator has a conflict between her role as a legislator and her role as a businessperson or as a mother, that's enough to require the legislator to recuse herself, no questions asked. No questions asked about her motivation, about how she feels about her son or whether she puts her business income ahead of her fiduciary duties to her constituents. She might want more than anything in the world to prevent her son from getting the job, from having him anywhere near city hall, but she still shouldn't vote on it. Her motivation is not the point.

This important difference between government ethics and crime enforcement is one more reason why the Speech or Debate Clause should not be applied in a government ethics context. The founding fathers never contemplated government ethics, as we know it, and it is highly questionable whether in their wisdom they would have applied the clause to a non-criminal, low-penalty, administrative procedure where a legislator's motivation is not at issue.

Robert Wechsler
Director of Research-Retired, City Ethics

---