Quis custodiet ipsos custodes? In English: Who will guard the guardians? This is a question many people ask about ethics commissions. But the question I would like to raise is, Is this the right question to ask?

The question was raised yesterday by Pawtucket (RI) Times columnist Jim Baron [2], concerning the bill to amend the RI constitution to give the state EC the jurisdiction over state legislators that they had until the recent state supreme court decision (see my blog post [3] on this).

Baron's posing of the age-old question (it goes back to Plato) was surrounded by the following:

[W]e also have to be careful that the some future Ethics Commission doesn’t try to take its power too far and infringe on the real and important prerogatives that the representatives of the people should have. ... That is an important question when you give one unelected panel like the Ethics Commission the power to write laws, enforce and execute those laws, prosecute people for violating those laws, pass judgment on their guilt or innocence, and penalize them with fines or removal from office.

It's true that the question should be asked of bodies that write and enforce laws, prosecute people, and remove people from office. But this is not ordinarily what ECs do. All they do is enforce laws covering a very narrow area of conduct, and they normally have a very limited set of penalties.

It is important for guardians to be guarded because they have a lot of power that they may abuse. ECs have very limited power, and there are limited ways in which they can abuse it. Unlike legislators, judges, and government administrators, ECs are not really public guardians in the sense that the question was, historically, asked.

Politicians often exaggerate the power ECs have in order to limit their independence. In fact, politicians have to do very little to prevent ECs from having any power over them. All they have to do is disclose when they think they might have a conflict of interest and recuse themselves when necessary (and ask if they're not sure), file financial disclosure statements and campaign finance reports on time, and not accept gifts from those doing business with their government. Is that really so much to ask?

Even in the narrow area of government ethics, ECs are only one of several guardians. The most important guardians are ethical leaders in government. Internal processes and expectations put in place by good ethical leaders can greatly reduce the need for ECs. Ethical leaders are elected officials and the managers they appoint. Other guardians include the criminal justice system, the news media, good government organizations, political parties, and the ballot box.

No one of these guardians can do it all. They complement and support each other. But the only one of these guardians over which politicians have control is the EC. This is why their power is so often exaggerated, and the power of ethical leadership so often ignored.

ECs may not be directly accountable to voters, but neither are the news media, the criminal justice system, political parties, or good government organizations. Politicians should stop worrying about ECs and instead act responsibly with respect to their own possible conflicts of interest, and be effectively ethical leaders.

Robert Wechsler
Director of Research, City Ethics

203-230-2548