making local government more ethical

Revolving Door Provisions and Free Speech Rights

In August, the U.S. District Court for the Southern District of Ohio granted a former state representative a temporary restraining order with respect to a state revolving door provision that prohibits state representatives from representing anyone other than a state political subdivision before the state legislature for one year after leaving office.

The representative is an unpaid spokesperson for an anti-tax organization. The court found that the law "severely burdened" the organization's First Amendment free speech rights by preventing the organization from choosing the best possible spokesperson before the legislature. The court also found that the revolving door provision could have been more narrowly tailored so that it did not include uncompensated representation, which it felt involves no likelihood of corruption. The legislative ethics committee argued that the rule is also intended to prevent the use of inside information, but the court found that the rule was not limited to matters in which the legislator was involved.

With respect to a legislator, limiting to matters in which the legislator was involved seems absurd, since legislators vote on issues across the board. It's not like an agency official who deals with a limited number of matters that come before the agency, where such a limit is reasonable.

As for uncompensated representation, this seems relatively harmless when it involves an ideological position such as generally opposing taxing and spending. But what about a legislator who leaves office and immediately represents entities with concrete interests, such as an industrial association or union, before the legislature for no compensation? This doesn't seem so harmless.

Distinguishing between "good" and "bad" representation is a problem. It has been a thorn in the side of the Obama administration, because good government lobbyists feel the Obama lobbying exclusions shouldn't apply to them. And in many ways they're right. But it's easier to exclude all lobbyists than to make the sort of distinctions that would separate "good" from "bad" in a way that wouldn't cause serious arguments.

Robert Wechsler
Director of Research, City Ethics
rwechsler@cityethics.org
203-230-2548
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