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Scrutinizing Strict Scrutiny in a Government Ethics Context
Thursday, December 9th, 2010
Robert Wechsler
This week the Council on Governmental Ethics Laws (COGEL) met in Washington,
D.C. and, as usual, I learned about a lot of cases and matters I didn't
know about. I will be sharing some of the more
important of my new revelations in blog posts over the next couple of
weeks.
I referred to the decision in Brinkman v. Budish (S.D. Ohio Feb. 17, 2010) in a June blog post, but I didn't dig into it, since my argument was that it was irrelevant to a matter a county attorney insisted it was relevant to.
What this decision does is apply a First Amendment free speech strict scrutiny standard to an ordinary revolving door representation provision that relates to Ohio state legislators. I believe that strict scrutiny is inappropriate to this situation, because government officials are not like ordinary citizens. Officials have obligations that no one else has. The Brinkman decision talks a lot about rights, but does not use the words "duty" or "obligation." Do we really want a democracy in which government officials have rights that are not offset by obligations? Is that really how we want to read the Constitution?
The Brinkman case is similar to legislative immunity cases. In both sorts of case, a legislator (here, a former legislator) seeks to undermine an ethics provision by taking the position that it is unconstitutional. What makes the Brinkman case blameworthy is that his situation was special — he wanted to represent a nonprofit advocacy organization — and yet he raised constitutional issues that apply far beyond this special situation. The court added insult to injury by considering these issues unnecessarily and without reference to a government officials' special obligations.
Compelling Government Interests
Strict scrutiny means that the state must show that the provision "furthers a compelling government interest and is narrowly tailored to achieve that end." The state provided the following three compelling government interests:
(1) to prevent unethical practices of public employees and public officials, that is, to prevent legislators from taking official acts in exchange for employment as a lobbyist immediately upon leaving the legislature; (2) to promote, maintain, and bolster the public’s confidence in the integrity of state government because of past instances of government corruption; and (3) to prevent unequal access to the General Assembly by outside organizations by virtue of any significant relationships with current and former public officials who may be in a position to influence government policy.
Government Ethics and Quid Pro Quo Corruption
The court acknowledges that preventing corruption and the appearance of corruption are compelling government interests, but then surprisingly turns to the Supreme Court's Citizens United decision, quoting it as saying that this is "limited to quid pro quo corruption." Not only did Citizens United deal with independent expenditures by corporations, not elected officials (who themselves passed the ethics laws), but the majority decision in Citizens United is highly questionable in light of past case law. Limiting ethics laws to proof of quid pro quo corruption is to turn ethics laws into criminal laws.
Here is what Justice Stevens said in his Citizens United dissent (pp 56-57):
Government ethics exists in a place short of quid pro quo corruption. That is one of its reasons for existing. To say that government ethics is unconstitutional because of a case involving independent expenditures by corporations is deeply irresponsible. To say this is to say that government officials have absolutely no obligations beyond a corporation, that, in the words of Justice Stevens, our democracy places no demands on them whatsoever. Their free speech rights are the same as anyone's, and anything they can consider free speech, be it voting for their brother's contract or representing a developer on one side of a matter weeks after representing the government on the same matter, is protected by the constitution.
How Important Is the Money?
The district court judge did go on to say that, to the extent the former legislator was paid for his lobbying, this makes the state's interest compelling. But it isn't the fact that a legislator is paid for his lobbying that makes the lobbying unethical, except to the extent there might have been a deal with the client to act in its favor while the legislator was still in office. Such a view would allow a legislator to lobby for free while receiving his compensation otherwise, say, through other legal work for the same client. Or take the example above: if you represent your brother in a contract you worked on for the government, does it really matter if your brother pays you or not?
It is the lobbying itself, in matters related to government work or to people who were colleagues and subordinates, that makes the revolving door a sign to citizens that their government officials are corrupt pawns of special interests rather than representatives of those who elected them. The money is secondary.
Leveling the Playing Field or Misuse of Office?
The court calls the state's third compelling interest "leveling the playing field." But it's not. This is a term that, once again, applies to money, not to the obligations of government officials. It is not considered a compelling interest for campaign finance laws to try to level the playing field among candidates. But it is a compelling interest for ethics laws to prevent officials from using their office, including their relationships with subordinates and others who owe them favors, to benefit themselves and others. To prevent this is to prevent a misuse of office, not to level the playing field. The state worded this compelling interest poorly, but that does not change the nature of the government's interest in preventing misuse of office.
How Long?
The court goes on to look at whether the revolving door provision is narrowly tailored to achieve the ends of the state's compelling interests. With respect to the provision's year-long limit on post-employment representation, the court says, "Defendants have not articulated or presented evidence to establish that the temporally limited restriction adequately addresses the concern against quid pro quo corruption."
It is very difficult to come up with hard and fast evidence of what time period would be best. One year is considered a standard length of time; some ethics codes extend it to two years, but no further. Practically, the time period is related to what legislators would be willing to put up with. Otherwise, it would be related to some concept of turnover and aging of debts; that is, after how many years would an official not be able to call in his colleagues' and subordinates' debts to him, to the benefit of his employers?
Requiring a legislature to prove the correctness of a post-employment time period could not hold up to a different sort of scrutiny. Not only is it extremely difficult to prove, but this proof is being asked of a legislature restricting the activities of its own members, not of ordinary citizens. Far less proof is required when legislators are restricting themselves for reasons they find compelling.
All or Nothing?
The court finds the post-employment representation provision over-inclusive as well, "because it does not restrict other behaviors or activities of former members of the General Assembly that might give rise to actual or perceived corruption, such as the acceptance of gifts or offers for employment unrelated to lobbying." This is a fascinating finding, because it implies that an ethics code cannot do things halfway. If a legislature is going to prohibit one thing, it must prohibit everything, or at least a sufficiently large number of things to satisfy a court. This dictum would require that every ethics code be as complete as possible. I'll bet we don't hear this dictum quoted by officials writing ethics codes.
Uncompensated Lobbying
It is unusual that this provision restricts uncompensated lobbying, but this is because those who write ethics codes are usually far too focused on money, for different reasons than the court. It is far too commonly believed that conflicts of interest involve only situations where there are financial benefits, often only direct financial benefits. This is a narrow view of conflicts, based partly on the fact that "interests" and "financial interests" are considered synonymous.
As this blog has shown, there are many other ways to personally benefit from one's office. And uncompensated lobbying can be one of them. An exception could have been made for uncompensated lobbying done for nonprofit organizations, but even there, there is the possibility that a nonprofit is merely a front for one or more special interests. Such nonprofits are becoming increasingly common.
What I don't understand is that if the court feels that uncompensated lobbying should be allowed, why did it go beyond that statement? Effectively, the rest is all dicta, but it is damaging dicta, poorly thought through and treated as if it was far more than dicta. This is irresponsible on the court's part.
According to a May 4 article in the Columbus Dispatch, the state of Ohio chose not to appeal this decision, effectively arguing that it would be throwing good money after bad. I think the money would have been well spent. An appellate decision couldn't have been any worse than this one.
Robert Wechsler
Director of Research-Retired, City Ethics
---
I referred to the decision in Brinkman v. Budish (S.D. Ohio Feb. 17, 2010) in a June blog post, but I didn't dig into it, since my argument was that it was irrelevant to a matter a county attorney insisted it was relevant to.
What this decision does is apply a First Amendment free speech strict scrutiny standard to an ordinary revolving door representation provision that relates to Ohio state legislators. I believe that strict scrutiny is inappropriate to this situation, because government officials are not like ordinary citizens. Officials have obligations that no one else has. The Brinkman decision talks a lot about rights, but does not use the words "duty" or "obligation." Do we really want a democracy in which government officials have rights that are not offset by obligations? Is that really how we want to read the Constitution?
The Brinkman case is similar to legislative immunity cases. In both sorts of case, a legislator (here, a former legislator) seeks to undermine an ethics provision by taking the position that it is unconstitutional. What makes the Brinkman case blameworthy is that his situation was special — he wanted to represent a nonprofit advocacy organization — and yet he raised constitutional issues that apply far beyond this special situation. The court added insult to injury by considering these issues unnecessarily and without reference to a government officials' special obligations.
Compelling Government Interests
Strict scrutiny means that the state must show that the provision "furthers a compelling government interest and is narrowly tailored to achieve that end." The state provided the following three compelling government interests:
(1) to prevent unethical practices of public employees and public officials, that is, to prevent legislators from taking official acts in exchange for employment as a lobbyist immediately upon leaving the legislature; (2) to promote, maintain, and bolster the public’s confidence in the integrity of state government because of past instances of government corruption; and (3) to prevent unequal access to the General Assembly by outside organizations by virtue of any significant relationships with current and former public officials who may be in a position to influence government policy.
Government Ethics and Quid Pro Quo Corruption
The court acknowledges that preventing corruption and the appearance of corruption are compelling government interests, but then surprisingly turns to the Supreme Court's Citizens United decision, quoting it as saying that this is "limited to quid pro quo corruption." Not only did Citizens United deal with independent expenditures by corporations, not elected officials (who themselves passed the ethics laws), but the majority decision in Citizens United is highly questionable in light of past case law. Limiting ethics laws to proof of quid pro quo corruption is to turn ethics laws into criminal laws.
Here is what Justice Stevens said in his Citizens United dissent (pp 56-57):
-
Undergirding the majority’s approach to the merits is the claim that
the only “sufficiently important governmental interest in preventing
corruption or the appearance of corruption” is one that is “limited to
quid pro quo corruption.” Ante, at 43. This is the same “crabbed view
of corruption” that was espoused by Justice Kennedy in McConnell and
squarely rejected by the Court in that case.540 U. S., at 152. While it
is true that we have not always spoken about corruption in a clear or
consistent voice, the approach taken by the majority cannot be right,
in my judgment. It disregards our constitutional history and the
fundamental demands of a democratic society.
On numerous occasions we have recognized Congress’ legitimate interest in preventing the money that is spent on elections from exerting an “‘undue influence on an officeholder’s judgment’” and from creating “‘the appearance of such influence,’” beyond the sphere of quid pro quo relationships. ... Corruption can take many forms. Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind.
Government ethics exists in a place short of quid pro quo corruption. That is one of its reasons for existing. To say that government ethics is unconstitutional because of a case involving independent expenditures by corporations is deeply irresponsible. To say this is to say that government officials have absolutely no obligations beyond a corporation, that, in the words of Justice Stevens, our democracy places no demands on them whatsoever. Their free speech rights are the same as anyone's, and anything they can consider free speech, be it voting for their brother's contract or representing a developer on one side of a matter weeks after representing the government on the same matter, is protected by the constitution.
How Important Is the Money?
The district court judge did go on to say that, to the extent the former legislator was paid for his lobbying, this makes the state's interest compelling. But it isn't the fact that a legislator is paid for his lobbying that makes the lobbying unethical, except to the extent there might have been a deal with the client to act in its favor while the legislator was still in office. Such a view would allow a legislator to lobby for free while receiving his compensation otherwise, say, through other legal work for the same client. Or take the example above: if you represent your brother in a contract you worked on for the government, does it really matter if your brother pays you or not?
It is the lobbying itself, in matters related to government work or to people who were colleagues and subordinates, that makes the revolving door a sign to citizens that their government officials are corrupt pawns of special interests rather than representatives of those who elected them. The money is secondary.
Leveling the Playing Field or Misuse of Office?
The court calls the state's third compelling interest "leveling the playing field." But it's not. This is a term that, once again, applies to money, not to the obligations of government officials. It is not considered a compelling interest for campaign finance laws to try to level the playing field among candidates. But it is a compelling interest for ethics laws to prevent officials from using their office, including their relationships with subordinates and others who owe them favors, to benefit themselves and others. To prevent this is to prevent a misuse of office, not to level the playing field. The state worded this compelling interest poorly, but that does not change the nature of the government's interest in preventing misuse of office.
How Long?
The court goes on to look at whether the revolving door provision is narrowly tailored to achieve the ends of the state's compelling interests. With respect to the provision's year-long limit on post-employment representation, the court says, "Defendants have not articulated or presented evidence to establish that the temporally limited restriction adequately addresses the concern against quid pro quo corruption."
It is very difficult to come up with hard and fast evidence of what time period would be best. One year is considered a standard length of time; some ethics codes extend it to two years, but no further. Practically, the time period is related to what legislators would be willing to put up with. Otherwise, it would be related to some concept of turnover and aging of debts; that is, after how many years would an official not be able to call in his colleagues' and subordinates' debts to him, to the benefit of his employers?
Requiring a legislature to prove the correctness of a post-employment time period could not hold up to a different sort of scrutiny. Not only is it extremely difficult to prove, but this proof is being asked of a legislature restricting the activities of its own members, not of ordinary citizens. Far less proof is required when legislators are restricting themselves for reasons they find compelling.
All or Nothing?
The court finds the post-employment representation provision over-inclusive as well, "because it does not restrict other behaviors or activities of former members of the General Assembly that might give rise to actual or perceived corruption, such as the acceptance of gifts or offers for employment unrelated to lobbying." This is a fascinating finding, because it implies that an ethics code cannot do things halfway. If a legislature is going to prohibit one thing, it must prohibit everything, or at least a sufficiently large number of things to satisfy a court. This dictum would require that every ethics code be as complete as possible. I'll bet we don't hear this dictum quoted by officials writing ethics codes.
Uncompensated Lobbying
It is unusual that this provision restricts uncompensated lobbying, but this is because those who write ethics codes are usually far too focused on money, for different reasons than the court. It is far too commonly believed that conflicts of interest involve only situations where there are financial benefits, often only direct financial benefits. This is a narrow view of conflicts, based partly on the fact that "interests" and "financial interests" are considered synonymous.
As this blog has shown, there are many other ways to personally benefit from one's office. And uncompensated lobbying can be one of them. An exception could have been made for uncompensated lobbying done for nonprofit organizations, but even there, there is the possibility that a nonprofit is merely a front for one or more special interests. Such nonprofits are becoming increasingly common.
What I don't understand is that if the court feels that uncompensated lobbying should be allowed, why did it go beyond that statement? Effectively, the rest is all dicta, but it is damaging dicta, poorly thought through and treated as if it was far more than dicta. This is irresponsible on the court's part.
According to a May 4 article in the Columbus Dispatch, the state of Ohio chose not to appeal this decision, effectively arguing that it would be throwing good money after bad. I think the money would have been well spent. An appellate decision couldn't have been any worse than this one.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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