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Theories of a Legislator's Role That Lie Beneath Definitions of Corruption
Wednesday, April 25th, 2012
Robert Wechsler
University of Maryland Law School professor Deborah Hellman recently
put the draft of her law review article, "Defining
Corruption and Constitutionalizing Democracy" (forth. Mich. L.
Rev (Vol. 111)), on SSRN. The core argument of her paper is that
defining legislative corruption requires a theory of the
legislator's role in a democracy. Hellman sets out three such
theories, and I add a fourth.
1. Corruption as a Deformation of Judgment. We see this theory in the common ethics code phrase, "impairment of an official's judgment." The unspoken theory of the legislator's role that lies behind this view of corruption is that legislators should consider only merits-based reasons for each decision they make. Therefore, any non-merits-based argument – or personal greed or an obligation to someone – that influences a legislator involves an impairment of the legislator's judgment. An ethics codes deals only with certain of these influences, and it takes the theory beyond legislators to include all officials and employees, but to the extent that it considers impairment of an official's judgment to be an ethics violation, it accepts the theory that lies behind this view.
2. Corruption as the Distortion of Influence. In this theory, the legislator is supposed to be responsive to constituents' preferences. Therefore, any responsiveness to some constituents' preferences over others', caused by undue influence, is a distortion of what is supposed to happen and is, therefore, corrupting. This is the theory behind gift rules that, like bribery provisions, mention "intent to influence," or that use language like the following with respect to soliciting or accepting a gift:
That's a heavy blow: the United States Supreme Court does not even recognize the validity of government ethics, at least in terms of how it defines corruption. Thankfully, this is true only in the context of campaign finance (which happens to be the focus of Hellman's article).
4. Corruption as a Breach of Fiduciary Duty. The Supreme Court, just last year, in a conflict of interest case, Nevada Commission on Ethics v. Carrigan, 180 L. Ed. 2d 150 (2011), in a unanimous opinion by Justice Scalia, accepted a different theory of the legislator's role: a legislator casts a vote “as trustee for his constituents, not as a prerogative of personal power.”
This fourth theory is what I consider to be the principal theory behind government ethics, which is why I oppose using the language of "impairment of judgment" and the language of influence (which also ignores the kind of corruption known as pay to play). What is especially different about this theory is that it is not a theory about legislators, but rather a theory about government officials that includes legislators. This theory, applied at the local level, says that government officials have a fiduciary duty to their community. That is, their duty is not only to constituents, if council members are elected by district, but to the entire community. Therefore, even if constituents love their representative and the fact that he brings a lot of money into the district, if it is done in such a way that it undermines the community's trust in its government (something a fiduciary should not do), it is corrupt.
Whatever the particular theory involved, what we can take from Hellman's paper is the recognition that "to define corruption requires articulating the standards of proper functioning of the institution or individual involved." This is too often ignored. What drives ethics codes is often scandals, that is, the negative side, rather than the positive side: what we expect from our government officials, how we view the proper functioning of government.
Hellman puts this idea another way: "actors are corrupt or not depending (at least in part) on whether they violate the norms for the actor and institution involved." Those norms, rather than mere prohibitions, should be discussed more when drafting or amending ethics codes.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
1. Corruption as a Deformation of Judgment. We see this theory in the common ethics code phrase, "impairment of an official's judgment." The unspoken theory of the legislator's role that lies behind this view of corruption is that legislators should consider only merits-based reasons for each decision they make. Therefore, any non-merits-based argument – or personal greed or an obligation to someone – that influences a legislator involves an impairment of the legislator's judgment. An ethics codes deals only with certain of these influences, and it takes the theory beyond legislators to include all officials and employees, but to the extent that it considers impairment of an official's judgment to be an ethics violation, it accepts the theory that lies behind this view.
2. Corruption as the Distortion of Influence. In this theory, the legislator is supposed to be responsive to constituents' preferences. Therefore, any responsiveness to some constituents' preferences over others', caused by undue influence, is a distortion of what is supposed to happen and is, therefore, corrupting. This is the theory behind gift rules that, like bribery provisions, mention "intent to influence," or that use language like the following with respect to soliciting or accepting a gift:
-
under circumstances in which it could reasonably be inferred
that the gift was intended to influence him, or could reasonably be
expected to influence him
That's a heavy blow: the United States Supreme Court does not even recognize the validity of government ethics, at least in terms of how it defines corruption. Thankfully, this is true only in the context of campaign finance (which happens to be the focus of Hellman's article).
4. Corruption as a Breach of Fiduciary Duty. The Supreme Court, just last year, in a conflict of interest case, Nevada Commission on Ethics v. Carrigan, 180 L. Ed. 2d 150 (2011), in a unanimous opinion by Justice Scalia, accepted a different theory of the legislator's role: a legislator casts a vote “as trustee for his constituents, not as a prerogative of personal power.”
This fourth theory is what I consider to be the principal theory behind government ethics, which is why I oppose using the language of "impairment of judgment" and the language of influence (which also ignores the kind of corruption known as pay to play). What is especially different about this theory is that it is not a theory about legislators, but rather a theory about government officials that includes legislators. This theory, applied at the local level, says that government officials have a fiduciary duty to their community. That is, their duty is not only to constituents, if council members are elected by district, but to the entire community. Therefore, even if constituents love their representative and the fact that he brings a lot of money into the district, if it is done in such a way that it undermines the community's trust in its government (something a fiduciary should not do), it is corrupt.
Whatever the particular theory involved, what we can take from Hellman's paper is the recognition that "to define corruption requires articulating the standards of proper functioning of the institution or individual involved." This is too often ignored. What drives ethics codes is often scandals, that is, the negative side, rather than the positive side: what we expect from our government officials, how we view the proper functioning of government.
Hellman puts this idea another way: "actors are corrupt or not depending (at least in part) on whether they violate the norms for the actor and institution involved." Those norms, rather than mere prohibitions, should be discussed more when drafting or amending ethics codes.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
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