Intelligence, Motivation, and Legislative Immunity in a Government Ethics Context
It appeared to be a sign of sheer desperation when former Illinois
governor Rod Blagojevich's attorney, in his closing argument last week,
used as a defense the fact that Blagojevich isn't "the sharpest knife
in the drawer."<br>
<br>
But actually this is a real issue, at least in government ethics. It is
often hard to tell the difference between incompetence and misuse of
office. Take local government attorneys, for example. Many of them
consciously let
officials off the hook with poor ethics advice, but many others lack
both a basic understanding of government ethics and the
professionalism to say so. As for local government officials, many of them also make ethical decisions
without a basic understanding of government ethics, and without
consulting the appropriate individuals or laws.<br>
<br>
And let's face it, many elected officials, like Blagojevich, are
intellectually challenged. Few people vote for the smarter candidate,
and there is a whole industry available to make just about anyone look
good. Name and contacts (Blagojevich had one out of two) are far more
important than competence.<br>
<br>
<b>A Lack of Intrapersonal Intelligence</b><br>
Even more than intellectual limitations and professional incompetence,
however, a lack of intrapersonal intelligence is responsible for
unethical conduct. Intrapersonal intelligence is the ability to be
aware of one's own emotional states, feelings, and motivations, and to
draw on them to understand and guide one's behavior.<br>
<br>
Even very intelligent
people often are out of touch with themselves, and elected officials
are more likely to be out of touch with themselves than others of the
same intellectual capacity.<br>
<br>
Elected officials tend to have a more developed interpersonal
intelligence, that is, the ability to be aware of others' emotional
states, feelings, and
motivations, and to act upon this knowledge — for
example, by influencing people to do what one wants.<br>
<br>
<b>Intelligence, Motivation, and Government Ethics</b><br>
Believe it or not, all this psychological mumbo-jumbo is not only
relevant to government ethics, but it is even
relevant to legislative immunity in a government ethics context.<br>
<br>
A big difference between government ethics as opposed to criminal
corruption laws is that knowledge and motivation are irrelevant to
government ethics and central to criminal corruption. The difference
between a bribe and a gift is that to prove a bribe, you have to prove
a quid pro quo, that is, an intent to take money in return for a
vote or another action. For a gift to be a violation of an ethics code,
no intent, no motivation need be proved.<br>
<br>
The dullest knife in the drawer defense doesn't work in a government
ethics context. All the dullest knife needs to know is who is the right
person to ask for ethics advice, and when to ask for it.<br>
<br>
In effect, there is a tradeoff here: less needs to be proved in
government ethics, and penalties are lower. That is why I get so
worked up about government ethics codes that make violations a crime.
This shows a misunderstanding of the difference between government
ethics and criminal corruption, and therefore undermines at least the
enforcement side of government ethics.<br>
<br>
<b>Motivation and Legislative Immunity</b><br>
Let's return to that word "motivation." No motivation need be proved in
government ethics, as opposed to criminal corruption. And coincidentally, motivation is
central to how the Supreme Court has interpreted the constitutional
Speech or
Debate Clause. Here, for example, is what the Supreme Court said
in one of the most important legislative immunity cases, <a href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0408_0501_ZS.ht…; target="”_blank”"><i>United
States</i> v. <i>Brewster</i></a>, 408 U.S. 501 (1972). This was
quoted to me by Louisiana Rep. Arnold, who brought the government
ethics
legislative immunity case in Louisiana that started the ball rolling
(see <a href="http://www.cityethics.org/node/254" target="”_blank”">my 2007 blog post</a>):<ul>
It is beyond doubt that the Speech or Debate Clause protects against
inquiry into acts that occur in the regular course of the legislative
process, and into the motivation for those acts.</ul>
Of course, no one would care if their votes or other acts were
mentioned in a court or ethics commission. It is, more than anything,
the motivation behind these acts that legislators and
the Supreme Court feel must be protected by the Speech or Debate
Clause. The Supreme Court interprets this clause as prohibiting the
asking of legislators, outside the legislature itself, why they said or
did what they said or did.<br>
<br>
Government ethics doesn't ask this question. Why did the legislator
accept the gift? Who cares. It was prohibited in order to prevent the
appearance of impropriety. Impropriety, greed, corruption, conspiracy,
fraud — none of
these have to be shown or asked about in a classic government ethics
matter.<br>
<br>
If a local legislator has a conflict between her role as a legislator
and her role as a businessperson or as a mother, that's enough to
require the legislator to recuse herself, no questions asked. No
questions asked about her motivation, about how she feels about her son
or whether she puts her business income ahead of her fiduciary duties
to her constituents. She might want more than anything in the world to
prevent her son from getting the job, from having him anywhere near
city hall, but she still shouldn't vote on it. Her motivation is not
the point.<br>
<br>
This important difference between government ethics and crime
enforcement is one more reason why the Speech or Debate Clause should
not be
applied in a government ethics context. The founding fathers never contemplated
government ethics, as we know it, and it is highly questionable whether
in their wisdom they would have applied the clause to a non-criminal,
low-penalty, administrative procedure where a legislator's motivation
is not at issue.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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