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Why Do Election Law Professionals Discuss the Latest Developments So Much More Than Government Ethics Professionals?
Monday, August 2nd, 2010
Robert Wechsler
There is an intriguing blog post on
Rick Hasen's Election Law Blog 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 this week:
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 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-Retired, City Ethics
---
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 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. ...
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 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-Retired, City Ethics
---
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Comments
Wayne Barnett (not verified) says:
Mon, 2010-08-02 17:50
Permalink
Dear Robert,
First off, you can count me in as someone who checks your blog every morning when I get to work. And if I could be so bold as to venture a guess as to why ethics law practitioners aren’t as cohesive a community as elections law practitioners, it’s that ethical rules seem intrinsically local whereas there is a growing and binding body of election law cases, rooted in the First Amendment, that any federal, state or local practitioner ignores at his or her peril.
Take, for example, FEC v. Davis. No one contemplating a public financing scheme that included matching funds can ignore FEC v. Davis, or fail to read McComish v. Bennett for that matter. You wouldn’t be doing your job if you weren’t familiar with the case law and trying to craft a program that would survive a constitutional challenge. There is just nothing comparable, that I’m aware of, when it comes to designing a conflict-of-interest provision, or gift rules, for a local jurisdiction. Sure you can get some good ideas by familiarizing yourself with models from other jurisdictions, but there is not a body of case law out there that you absolutely must know, or a challenge to your local provision that you can see approaching.
And Seattle’s Ethics Code was developed by Seattleites for Seattleites, something that I, a relative newcomer, discovered when I proposed some changes to the Code last year. This City takes pride in its commitment to good government, and there is some suspicion of any idea generated outside of the City’s borders, let alone east of the Mississippi. I’m sure civic activists in other cities take a similar view of their Ethics Codes. Saying “this is how they do it in ABC” just doesn’t carry much weight out here.
Best regards,
Wayne Barnett
Executive Director, Seattle Ethics and Elections Commission
Robert Wechsler says:
Mon, 2010-08-02 19:25
Permalink
There is a growing body of case law that is generally relevant. Most of the case law I look at in this blog relates to issues that every local government ethics program has to deal with, including confidentiality, due process, transparency, legislative immunity and even the first amendment. They're rarely U.S. Supreme Court cases, but they often interpret Supreme Court cases.
And there are issues that every jurisdiction is or should be dealing with, such as the advice and complaint processes, indirect and non-financial conflicts, family members, etc. I rarely deal with an issue that isn't generally applicable, and I could write dozens of blog posts every day, if I had the time and energy.
But you are right that most people feel that ethics programs are local. It's best to tailor an ethics program for a particular community, and get a lot of community involvement, but this is the exception. I often see people talking about "our special community" as a way not to even consider best practices, to start from the bottom, without any goals, and end up with a partial, self-regulated program, rather than starting with a complete program and taking out what isn't appropriate to the community.
Jack Marshall (not verified) says:
Wed, 2010-08-04 23:06
Permalink
Bob, I understand your frustration, but there is progress. I regularly give out your site as a key reference when I am talking to municipal government lawyers. I also emphasize the importance of keeping up with the blogs in one's legal specialty. Most lawyer I know simply don't check out any blogs, but that will change. Keep up the great work, and don't despair.