making local government more ethical

The Virtuous Circle of Ethics Laws and Legislative Immunity -- And the Legislators Who Stand Outside of It

Back in June, in the middle of a long blog entry on legislative immunity, I referred to the virtuous circle that includes both ethics laws and the Speech or Debate Clause, which provides legislators immunity from interference from the executive and judicial branches. I would like to focus on this virtuous circle, and explain it further, because I think it might be the most important argument in support of continued independent ethics jurisdiction over legislators at every level of government.

The principal goal of ethics laws is to have government officials put the public interest ahead of their personal interests. In the most basic and most relevant ethics law, an official with a conflict between his or her personal interests and the public interest is required to withdraw from participation and voting with respect to the matter (recusal). In other words, the public interest in having an official act in the public interest, or not at all, is considered more important than the official's obligation to represent his or her constituents. This balance is at the heart of all ethics laws. And ethics laws are a relatively recent concept, not taken into account when the Constitution was written.

The principal goal of the constitutional Speech or Debate Clause is to prevent legislators from participating and voting on matters with an eye to protecting their personal interest, specifically, their interest in not being sued or prosecuted. If a legislator were to allow the threat or fact of a suit or prosecution based on legislative activity to affect his or her participation and voting in a matter, there would be two solutions. Recusal would solve the conflict created by the threat or fact of a suit or prosecution, but it would let this threat or fact succeed, at least in part, thereby undermining the legislator's obligation to constituents. The better solution, and the one chosen by the writers of our Constitution, is to take away such a threat or fact of suit or prosecution, so that the legislator can represent the public interest.

In both situations, the goal is the same: putting the public interest ahead of a legislator's private interests. The two situations sit across from each other on a virtuous circle. On one side, the personal interest is self-originated and, therefore, there is no way to get rid of it (when the personal interest becomes an issue, it's too late for the legislator to do anything about it). The solution is recusal. On the other side of the circle, the cause of the personal interest is imposed from the outside and, therefore, it can be gotten rid of, can be made harmless by protecting the legislator, so that nothing is imposed on the legislator.

Also, on the Speech or Debate side of the circle, the issue is how the legislator will participate and vote, the content of his or her legislative activity. On the other side of the circle, the issue is whether the legislator will participate and vote at all, the fact of his or her legislative activity. Ethics enforcement has nothing to do with the content of legislative activity, which is what concerned the authors of the Speech or Debate Clause.

Sitting as they do on opposite sides of the same virtuous circle -- both protecting the public interest over personal interests -- recusal and the Speech or Debate Clause do not conflict.

State courts have recently ignored this virtuous circle, and focused on jurisdictional issues, finding that only fellow legislators can question and wield authority over legislators when they are acting in a legislative capacity. But the Speech or Debate Clause, although referring to "any other place," was intended to apply to the executive and judicial branches, and all cases involving the Clause until this year dealt solely with these two branches. Ethics bodies created by a legislature are part of neither the executive nor the judicial branch.

The ethics commission is an odd sort of body completely unanticipated by the writers of the Constitution or by the common law that preceded it. If a legislature believes that an independent ethics body is preferable to self-regulation, there is nothing in the Constitution to prevent this, and allowing such a body to enforce ethics laws does not take away any rights from legislators, nor does it prevent them from freely representing their constituents when the legislature has determined that an official with a conflict cannot freely or adequately represent constituents.

The facts tell a different story than the recent state court decisions. Many state and local government legislatures have allowed independent bodies to have jurisdiction over their conduct. In fact, many legislators have done this because they could not police themselves, and scandals occurred.

Some legislatures have created mixed bodies of legislators and citizens, which the recent cases would also, I presume, consider unconstitutional.

A serious argument could be made that the members of an independent ethics body should be appointed by the legislature only, and this happens to be both the norm and the preferred choice of most government ethics professionals.

The other important fact is that legislatures have a horrendous record dealing with their members' misconduct. The U.S. Congress is only the best-known example. Self-regulation of ethics not only doesn't work, but it is more political and personal and injurious to public trust than independent ethics enforcement.

Speaking of facts, what has really been going on in Louisiana, Massachusetts, and Nevada is that legislators there do not want to be seen as taking authority away from an independent body and giving it to themselves. They would rather have courts do this, so they can be seen as protecting their constitutional right to speak for their constituents. But they are actually acting unethically, spending large amounts of taxpayer funds to fight suits when they could easily have passed statutes turning jurisdiction over to a legislative ethics committee.

These legislators are thinking only of themselves. Their goal is in no way to protect the public interest. They stand outside the virtuous circle.

I should add that the only legitimate case brought is that in Rhode Island, where the legislature did not institute the ethics code. Instead, it came through a constitutional amendment prepared by a constitutional convention. Therefore, the Rhode Island legislature could not have taken jurisdiction over ethics matters by itself. It needed court approval. On the other hand, the fact that ethics jurisdiction was determined by a constitutional amendment makes the Rhode Island Ethics Commission's case that much stronger, since the only issue is how to harmonize two constitutional provisions.

Other blog entries on legislative immunity:
Rhode Island 1 and 2
Nevada 1 and 2
Additional reading

Robert Wechsler
Director of Research, City Ethics