making local government more ethical
The big news in the government ethics world this week is C.J. Roberts' opinion in the McCutcheon case. The biggest problem with this opinion is its author's continuation of an unrealistic picture of how large campaign contributions work. Roberts acts as if access were not an important goal, and as if the only problematic relationship between contributor and elected official involved quid pro quos. A more accurate view is that because contributions are one aspect of relationships based on ongoing gift-giving and ongoing access and benefits, those who seek access and special benefits from a government should not be able to make large gifts.

If Roberts' view of problematic relationships were applied to government ethics laws, there most likely wouldn't be very many rules left standing, because government ethics, like campaign finance, exists in a non-quid pro quo world.

Although this decision applies only to federal campaign finance laws, past campaign finance decisions have been applied at all governmental levels. Therefore, it is problematic for local government ethics that a statement near the end of the Roberts opinion presents a picture of campaign contributing that bears little relationship to what occurs at the local level:
Can anyone volunteer for a local political campaign without it being considered a contribution? Isn't it everyone's right to do so? Isn't this just about the most important thing a citizen can do, short of running for office herself?

According to the Toronto Metro News website last week, a "political strategist" and lobbyist who was accused of being paid to work on a mayoral campaign responded, “I’m not getting paid a red cent, asshole.” Is there nothing left to say on the issue, other than about civility? Or is it a problem for a political strategist to offer his services for free without declaring them as an in-kind contribution?

While I was on vacation last week, the biggest story in local government ethics appears to have been, once again, in the District of Columbia. According to a press release from the U.S. Attorney for the District of Columbia and the charges brought by the U.S. Attorney (attached; see below), the CEO of the parent company of a major D.C. government health care contractor pleaded guilty to conspiracy to channel over $2 million in illegal contributions to and in-kind expenditures in support of two D.C. mayoral candidates and multiple D.C. council candidates between 2006 and 2011.

Recently, the hiring of lobbyists to represent cities before state and federal governments and agencies has become controversial. Some people think this is an inappropriate use of taxpayer funds. I don't agree. However, the hiring of external lobbyists (as opposed to government officials who do the lobbying themselves) does raise some government ethics issues, because it adds to the mix highly politicized contractors.

This problem is exacerbated when there are laws limiting or prohibiting the hiring of lobbyists. For example, the Department of Housing and Urban Development (HUD) has a rule prohibiting the use of HUD funds for lobbying.

According to an article put up on the WGRZ-TV website yesterday evening, when Buffalo's current mayor was first elected in 2005, he didn't know about the HUD rule and thought nothing about continuing the contracts of three lobbying firms, paid for partially out of HUD funds. He also appears to have thought nothing about accepting campaign contributions from two of these firms, and even told a reporter he wasn't aware of any such contributions.

UC at Irvine Law School professor Richard Hasen's essay, "Lobbying, Rent-Seeking, and the Constitution," 64 Stanford Law Review 191 (2011), is a good complement to the Teachout essay I recently wrote about. Besides its valuable look at the idea that lobbying should be regulated because it is harmful to our economy, Hasen's paper looks at two post-Citizens United judicial decisions that struck down regulations that limited lobbyists' campaign finance activities and the cooling-off period between public office and lobbying.

Human Rights Watch has just published a harrowing report entitled "Profiting from Probation," which shows how the privatization of probation has led to conflicts of interest that have seriously harmed many individuals, and how probation companies have not been sufficiently supervised by the criminal justice system.