There is an intriguing blog post on Rick Hasen's Election Law Blog [1] this morning, entitled, Is Reading a Legal Blog in One's Field Now Part of the Due Diligence of Lawyers?

This is not the wishful thinking of a blogger, but rather a response to the following passage in the 11th Circuit's Scott v. Roberts public campaign financing decision [2] this week:

McCollum should have known that the excess spending subsidy was vulnerable to legal challenge. On the day that the Supreme Court decided Davis, a leading scholar of election law wrote that the decision "calls all [asymmetrical] provisions in public financing systems into question." Rick Hasen, Initial Thoughts on FEC v. Davis: The Court Primes the Pump for Striking Down Corporate and Union Campaign Spending Limits and Blows a Hole in Effective Public Financing Plans, Election Law Blog (June 26, 2008, 7:55 AM), http://electionlawblog.org/archives/011095.html [3]. ...

The court goes on to refer to two recent decisions from two other circuits, but it is fascinating that the court referenced a blog post at all.

In my other role, as administrator of New Haven's public financing program, the Democracy Fund, I did read the Davis decision and the blog post. I agreed with the blog post, and reported to my board about the possible implications of the Davis decision. I doubt that there are many attorneys or others who practice in the field of election law who do not regularly read the Election Law Blog. It would be highly irresponsible not to.

Which brings me to the City Ethics blog. Very few private or government attorneys who do not practice full-time in local government ethics read this blog on a regular basis. And there are very few private or government attorneys who do practice full-time in local government ethics. That is one of the biggest problems in the field:  there are very few people who feel any due diligence to keep up with the latest developments in, or even truly understand, local government ethics. And yet there are thousands of attorneys who practice regularly in the field, and who portray themselves as government ethics experts, especially by giving advice to local officials.

The election law field also has a very active private listserv that debates major new decisions and other developments in election law. As far as I know, government ethics has no such listserv. The only time new developments are discussed is at annual COGEL [4] conferences, which few local government ethics professionals can afford to attend.

Even at COGEL conferences, major new developments, such as the new trend in court decisions on legislative immunity in a government ethics context, often go without any mention. In fact, I applied to head a panel on legislative immunity at the 2009 and 2010 COGEL conferences, and both times my application was rejected.

A few practitioners in government ethics who are members of COGEL do discuss the most practical issues of government ethics on a private and sadly rather moribund COGEL forum, but they lack the due diligence of election law practitioners and academics to discuss new case law, EC decisions and advisory opinions, and other matters that do not involve immediate issues they are dealing with themselves. And there is almost no input from academics, who usually bring a broader perspective to legal issues.

The City Ethics blog could be a place to have such a discussion, but there has not been any interest. I made a feeble attempt to start a private forum, to see if the public nature of a blog was the problem, but there appeared to be very little interest in that, as well. And no academics, such as Rick Hasen with his Election Law Blog, have taken the initiative.

Election law has many more conferences, apparently because its practitioners can afford to attend. This inability to meet in person is all the more reason government ethics professionals should make use of free, and far less time-consuming online opportunities for discussion.

I have my feet in both the local government election law and local government ethics fields, so the contrast is stark to me. But I don't know why. The usual excuse, lack of time, applies to both fields. I'd love to hear people's thoughts on why our field is so different from election law, either via comments to this blog post, or privately via e-mail.

If only I could ask the question on the election law listserve. I would get several responses the very same day.

Robert Wechsler
Director of Research, City Ethics

203-230-2548