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Cleaning Up a Political Culture - Don't Necessarily Do the First Things That Come to Mind
Friday, November 14th, 2008
Robert Wechsler
The DiMasi case, discussed in the most recent blog entry, is not the
only ethics case in Massachusetts that has drawn a lot of attention.
The result of a perception of increasing ethical misconduct has led the
governor to appoint a new task force on public integrity, according to an
editorial in today's Boston Globe with an inapt plumbing metaphor in its title,
"Drain the Ethics Cesspool."
The problem seems to me more that Massachusetts' various protectors of public integrity, the Ethics Commission, the Inspector General, the Office of Campaign and Political Finance, and the FBI are doing their job unearthing and responding to potential ethical misconduct. In the short run, this makes it look as if things are getting worse, but it should be good for the long run.
The Globe editorial calls for a few changes that I think are questionable. One is to substantially raise penalties. But are penalties really what deters misconduct?
The Globe calls for officials to give exact dollar amounts rather than ranges on their disclosure forms. I don't think exact dollar amounts are necessary. Financial disclosure is intended to show that there is an interest, not how much it is. Politicians should, I believe, have some privacy regarding their wealth, but not regarding the existence of interests.
The Globe calls for searchable databases that reveal the nuts and bolts of state contracts, including lobbyist activities, using Wisconsin as an example. This would be valuable.
The Globe calls for cutting the pensions of those found guilty of ethical misconduct (this is only done now for criminal convictions). As I wrote in an earlier blog entry, I don't think pension forfeiture is a good policy. The principal rationale behind pension forfeiture is that pensions are rewards for faithful service, and that a breach of public trust negates the public official's entitlement to the pension. But is a pension a reward or is it something that is contracted for? And what about spouses and dependents? Pension forfeiture is more about retribution than it is about ethics enforcement or accountability.
The Globe calls for increasing the statute of limitations from three to five years. If there's been no attempt to hide information, and a pattern of misconduct is not being traced back, I'm not sure it would be valuable to go after such old ethical misconduct. It's not like it is with, say, embezzlement, where you want to find out how much has been taken, no matter how long ago. And the older the facts, the more expensive the investigation, putting underbudgeted ethics commissions in a difficult position.
The Globe editorial brings up a 1970s instance of legislative immunity, which was used to undermine the purpose of creating an Inspector General's office to deal with bid-rigging problems by preventing it from subpoenaeing legislators involved with bid-rigging.
It also points to a case involving State Rep. Angelo Scaccia, "who tangled with the Ethics Commission in the 1990s for taking free meals and golf games from lobbyists. Scaccia pushed back, leading to a Supreme Judicial Court ruling requiring a direct link between a gift and a specific act, such as a vote, to bring a case under the state's illegal gratuity law." Insisting on a direct link, or a showing of influence, has always been legislators' way of weakening gift provisions. Scaccia was using an old playbook. It's sad that the courts allowed him to get away with it.
There are really two problems here. One is electing legislators who support this sort of thing, and who choose legislative leaders, such as DiMasi, who provide little or no ethical leadership. Two is the lack of strong leadership in the exective branch. Creating a task force on public integrity could be a good thing, if it doesn't come up with solutions that just look good and make people happy, such as pension forfeiture. Much more important than this is setting a good example, pursuing ethical hiring and promotion, fully funding ethics and public integrity agencies even in a recession, and requiring full disclosure and responsible handling of conflicts of interest throughout the executive branch and in the legislature. For example, the governor should ask the speaker of the house to turn his records over to the ethics commission, even though he might have the right to refuse to do this. The responsibilities of such a position, the governor could say, override constitutional rights.
Massachusetts has long had an arrogant political culture and politicians who play hardball. It's important to take a new look at public integrity laws every few years, but this is not necessarily the solution, or is only one part of the solution. The culture has to change, and if this change isn't coming from above, it can only come from below. If political leaders aren't providing ethical leadership, they should be voted out of office. If they don't want citizens to know what they've done, they shouldn't be re-elected. Nothing any government agency could do would be more effective than voting a speaker of the house out of office.
Robert Wechsler
Director of Research-Retired, City Ethics
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The problem seems to me more that Massachusetts' various protectors of public integrity, the Ethics Commission, the Inspector General, the Office of Campaign and Political Finance, and the FBI are doing their job unearthing and responding to potential ethical misconduct. In the short run, this makes it look as if things are getting worse, but it should be good for the long run.
The Globe editorial calls for a few changes that I think are questionable. One is to substantially raise penalties. But are penalties really what deters misconduct?
The Globe calls for officials to give exact dollar amounts rather than ranges on their disclosure forms. I don't think exact dollar amounts are necessary. Financial disclosure is intended to show that there is an interest, not how much it is. Politicians should, I believe, have some privacy regarding their wealth, but not regarding the existence of interests.
The Globe calls for searchable databases that reveal the nuts and bolts of state contracts, including lobbyist activities, using Wisconsin as an example. This would be valuable.
The Globe calls for cutting the pensions of those found guilty of ethical misconduct (this is only done now for criminal convictions). As I wrote in an earlier blog entry, I don't think pension forfeiture is a good policy. The principal rationale behind pension forfeiture is that pensions are rewards for faithful service, and that a breach of public trust negates the public official's entitlement to the pension. But is a pension a reward or is it something that is contracted for? And what about spouses and dependents? Pension forfeiture is more about retribution than it is about ethics enforcement or accountability.
The Globe calls for increasing the statute of limitations from three to five years. If there's been no attempt to hide information, and a pattern of misconduct is not being traced back, I'm not sure it would be valuable to go after such old ethical misconduct. It's not like it is with, say, embezzlement, where you want to find out how much has been taken, no matter how long ago. And the older the facts, the more expensive the investigation, putting underbudgeted ethics commissions in a difficult position.
The Globe editorial brings up a 1970s instance of legislative immunity, which was used to undermine the purpose of creating an Inspector General's office to deal with bid-rigging problems by preventing it from subpoenaeing legislators involved with bid-rigging.
It also points to a case involving State Rep. Angelo Scaccia, "who tangled with the Ethics Commission in the 1990s for taking free meals and golf games from lobbyists. Scaccia pushed back, leading to a Supreme Judicial Court ruling requiring a direct link between a gift and a specific act, such as a vote, to bring a case under the state's illegal gratuity law." Insisting on a direct link, or a showing of influence, has always been legislators' way of weakening gift provisions. Scaccia was using an old playbook. It's sad that the courts allowed him to get away with it.
There are really two problems here. One is electing legislators who support this sort of thing, and who choose legislative leaders, such as DiMasi, who provide little or no ethical leadership. Two is the lack of strong leadership in the exective branch. Creating a task force on public integrity could be a good thing, if it doesn't come up with solutions that just look good and make people happy, such as pension forfeiture. Much more important than this is setting a good example, pursuing ethical hiring and promotion, fully funding ethics and public integrity agencies even in a recession, and requiring full disclosure and responsible handling of conflicts of interest throughout the executive branch and in the legislature. For example, the governor should ask the speaker of the house to turn his records over to the ethics commission, even though he might have the right to refuse to do this. The responsibilities of such a position, the governor could say, override constitutional rights.
Massachusetts has long had an arrogant political culture and politicians who play hardball. It's important to take a new look at public integrity laws every few years, but this is not necessarily the solution, or is only one part of the solution. The culture has to change, and if this change isn't coming from above, it can only come from below. If political leaders aren't providing ethical leadership, they should be voted out of office. If they don't want citizens to know what they've done, they shouldn't be re-elected. Nothing any government agency could do would be more effective than voting a speaker of the house out of office.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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