making local government more ethical
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.

It's official:  what differentiates us from chimpanzees is not our intelligence, our ability to deal with the abstract, or our ability to tell jokes. According to the decision of a five-member New York state appellate panel yesterday, "Unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions. In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights ... that have been afforded to human beings."

In short, rights depend on duties, responsibilities, and accountability. That's pretty much what government ethicists have been saying. The right to run for and hold public office, the right to get a government contract, grant, or permit, the right to lobby government officials, even the right to be a citizen, all these rights come with duties. Without those duties, there are no rights.

The Speech or Debate Clause of the U.S. Constitution protects activities within the "legislative sphere" from being heard outside the legislature, and prevents the introduction of evidence of legislative activity in any such hearing. A recent brief from the U.S. House Ways and Means Committee in S.E.C. v. Ways and Means Committee argues (on pp. 30, 34-37) that communications between industry lobbyists and the staff director of the committee's subcommittee on health are privileged and may not be subpoenaed by the SEC in an investigation of alleged insider trading-related leaks.

Rhode Island's lawmakers really know how to protect themselves. They have fought hard and long to effectively preserve their immunity from state ethics commission jurisdiction. However, with pressure on them to recommend to their constituents a constitutional amendment that would give the EC jurisdiction over them, despite the state's Speech in (sic) Debate Clause, they have planted a bomb in their proposed amendment that will ensure that even the state's good government organizations would oppose it (and that few ordinary citizens would understand what all the fuss was about).

What the state legislature did was to add in a de novo review process, which would allow any state or local official the EC found in violation of the state ethics code to seek a new court trial. The court would not be able to consider the EC's factual findings. In other words, instead of a right to appeal an EC ruling (where the court would determine whether the EC had done anything inappropriate), all officials would get a second chance to argue the facts and the law, and to have their case decided by a judge who would likely care far less about government ethics and have less expertise than the EC.

Court decisions, especially when combined with criminal enforcement of ethics violations, can be very harmful to local government ethics. The court in a Monterey County case involving a serious §1090 conflict of interest matter that officials were not only aware of, but appear to have helped create, has used two recent California court decisions to limit prosecution to just one official. Recently, the official's last-ditch effort to dismiss the charges on the basis of an entrapment argument failed, according to an article in yesterday's Monterey Herald. In fact, a judge barred the official from calling anyone, including his colleagues, to testify in a preliminary hearing on the entrapment defense.

This blog has been closely following cases where the legislative immunity defense has been used in government ethics proceedings. This week, the same issue arose with respect to an open records proceeding in Wisconsin. According to an article posted on the Madison Isthmus site yesterday, Wisconsin's attorney general has argued in an open records proceeding that a state senator is immune from a suit based on the state's open records law throughout her term in office, pursuant to state constitutional provision Article IV, Section 15, which provides that members of the state legislature "shall not be subject to any civil process, during the session of the Legislature."