making local government more ethical
According to an article in today's New York Daily News, an investigation by the U. S. Attorney for the Southern District of New York has found that the son of the NY State Senate majority leader was a consultant for a company that won a county stormwater treatment contract in the majority leader's district, despite not being the low bidder and, according to a New York Times article, despite creating a need for state legislative approval due to the company filling a duel role in the project (it is unlikely now that approval will be provided).

According to the Times, the U. S. Attorney is trying to determine whether the senator tried to influence the bidding process and whether the senator's son was hired by the contractor as "part of a scheme in which the senator, in exchange, would take official action that would benefit" the contractor or a real estate developer with ties to it.

This is the fourth of four blog posts on Zephyr Teachout's excellent new book, Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United (Harvard Univ. Press).

Extortion and Pay to Play
Teachout talks about the difference in the origins of bribery and extortion statutes, the first coming out of judicial rules (bribing judges), the second coming out of rules governing appointed or employed officials who use their position to require money from those the official is supposed to serve for free.

It's interesting that one rarely hears the word "extortion" in a government context anymore. The term "pay to play" covers one form of extortion, but it certainly seems less judgmental. Pay to play, because much of it is legal and it is done by elected officials rather than employees, is frowned upon, but often considered ordinary business, unlike bribery or extortion.

And yet, Teachout notes, extortion was, at first, more likely to be criminalized "perhaps because the power dynamic of an official extorting a citizen was more dangerous than a citizen bribing an official." But Teachout says that from the mid-18th century "the elements of bribery and extortion were increasingly fused."

This is the second of four blog posts on Zephyr Teachout's excellent new book, Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United (Harvard Univ. Press).

A Culture of Gift Giving
In the book's introduction, Teachout notes that, back in the 18th century, the idea of elected officials accepting gifts was already very different in America than it was in Europe. Gifts had "positive associations of connection and graciousness" in Europe, and "negative associations of inappropriate attachments and dependencies" in America. Americans had a more puritanical view of such gifts as "seductive," "luxurious," and "Old World." Therefore, all gifts to officials, including diplomats, had to be approved by Congress, making them public rather than private. The goal was not to prevent bribery, but rather, as Teachout says, to prevent "a culture of gift giving." More positively, the goal was to create "an aristocracy of virtue and talent" instead of an aristocracy of power and wealth (quoting Gordon S. Wood, Radicalism of the American Revolution (Knopf, 1992, p. 183)).

But even then, it was hard for officials to reject or disclose gifts. Teachout tells a story of Thomas Jefferson failure to disclose an expensive gift from the French king, which ends: "his simultaneous disdain for European gifts and his inability to resist them foreshadow a long American practice: our desire to reject and accept the old practices simultaneously."

This is the first of four blog posts in which I will look at Zephyr Teachout's excellent new book, Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United (Harvard Univ. Press), from a government ethics viewpoint. I have already reviewed Teachout's seventh chapter (which appeared separately in draft form), on the history of lobbying regulation, particularly by courts, and have included a discussion of it in my new chapter on Local Lobbying.

The first thing that one should know about the book is that it is not a history of corruption in the United States, but rather a history of the idea of corruption in the U.S. Teachout's focus is on "the anticorruption principle," which she believes was central to the Founders' vision of the United States, and which has, in recent years, been lost sight of. Teachout is very passionate about both the principle and the way the courts have turned their back on it, and this passion is what makes the book so readable and, even, moving. Although it is full of history and appraisals of judicial decisions, it is not just an academic exercise.

The most important thing about this book to government ethics specialists is that Teachout's discussion of corruption is limited to influence on government officials via (1) gifts, including campaign contributions, and (2) lobbying. As she says in the book's introduction, "There are important areas of corruption law that this book only lightly touches on, like contracting rules, transparency laws, [and] state and local government conflict of interest laws ..."

Although this is not a book about the core conflicts of interest issues or about the conflicts of interest programs, Teachout does raise a number of issues and ideas that are relevant to all aspects of government ethics. It is these issues and ideas that my posts will discuss.

An example I often use for why government ethics laws are only minimum requirements is that these laws cannot include friendships or romantic relationships, because these are impossible to define with any precision. When a relationship is not included because it is undefinable, this does not mean that one should not treat this relationship like any other special relationship and withdraw from matters involving that individual. One should go beyond the minimum requirements of the law and withdraw. Or even consider whether it is appropriate to have such a relationship, any more than it would be to go into business with a restricted source. It may seem unromantic, but personal relationships do involve more than love and affection. And the last thing a local official wants is jokes about how he's "sleeping with" a contractor, developer, or lobbyist.

In North Carolina, there appear to have been some cases of legislative aides dating lobbyists. To deal with the problem, a laughably inadequate bipartisan bill was drafted, instead of using the situation as a teaching point for the idea that ethics laws (in this case, a basic conflict of interest provision's application to special personal relationships) are, unlike most other laws, only minimum requirements. Here's the draft bill (HB 252):
U.S. Sen. Robert Menendez is to be indicted this week for bribery and failure to report gifts. Where there is an effective government ethics program, he would be easily found to have committed administrative government ethics violations. In a criminal case, the official has the edge (and he has already formed a legal defense fund, to obtain legal but inappropriate contributions from those seeking favors from him). According to a Washington Post article yesterday, Menendez has a couple of good defenses that he would not have in a government ethics case.

One is that he and the ophthamologist/owner of a company that provides screening equipment for ports have been friends for decades. In most local government ethics codes, gifts from contractors includes gifts from friends who are contractors.