The Political Use of Ethics Complaints, and the Manipulation of the Press

There's a good opinion piece by Austin American-Statesman columnist Jason Embry this week on the political use of ethics complaints. The instances of abuse of the ethics process is what has led many jurisdictions to prohibit any mention of filing an ethics complaint and to prohibit the filing of ethics complaints within sixty or so days of an election.

"Here's what happens," Embry wrote. "A campaign thinks it has the goods on its opponent, so an ally files an ethics complaint. Then the campaign publicizes said complaint, and it filters out through the news media. The commission may or may not act on it before the election." Usually an EC doesn't have the resources to act quickly enough.

Here's one example Embry gives. The chair of one Texas political party filed a complaint against the other party's gubernatorial nominee, saying he had left some of his income off his state disclosure form. The gubernatorial candidate insisted that he followed the law. "But just by filing the complaint, [the other party] picked up yardage [and its] team produced a video showing 11 Texas television anchors reading that a complaint had been filed ... for a 'failure to report' income," even though the matter had not yet been investigated.

What should be done in this instance? It would not be at all unfair for the complaint to be automatically dismissed, and for the state ethics commission to send out a stock press release stating that the matter had been dismissed on account of the candidate's abuse of the ethics process.

It would also not be unfair for the ethics commission to be required to file a complaint against the candidate, or against anyone other than the respondent, for illegally announcing the filing of the complaint. This too could be mentioned in the stock press release, and the possible penalties for this illegal act could be included there as well.

This would mean that, if the EC were told of an illegal mention of the filing of a complaint, especially during an election season, it would automatically counter that mention with its own press release, which would presumably get equal time in the news media and blogosphere. The result would be that a party and candidate would know that, if they abuse the ethics process for political purposes, they will lose just as much or more, because the one making the announcement would be the EC, and its action would not be seen as political, because it is required.

Unfortunately, this would mean that many complaints would instead be publicized by an independent (or apparently independent) organization or individual whom no one knows or cares about. The complaint may still be dismissed, but the damage to the opposing candidate's reputation would have been done.

The only person who may mention a complaint is the respondent, whose reputation is on the line. If the respondent publicly defends himself against a complaint that has not been made public, then the complaint is public knowledge, and anything goes (at least anything true).

And the first amendment allows anyone who believes a candidate has done something illegal to say so publicly. What they can't do is legitimize it by saying that a complaint was filed. This seem senseless, but it is no more senseless than the news media's rule that the filing of a complaint makes a matter far more legitimate than a mere accusation.

It's ironic that the news media is both the greatest defender of government transparency, the greatest supporter of government ethics, and one of the major causes of a lack of transparency in the ethics process.

But the real culprits are those who cynically manipulate the news media, who believe that the end justifies the means, even in a process that rejects this sort of ethical approach (see an earlier blog post on ends-based vs. rules-based ethics).

See another blog post on ethics proceeding confidentiality.

Robert Wechsler
Director of Research-Retired, City Ethics

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