Theories of a Legislator's Role That Lie Beneath Definitions of Corruption
University of Maryland Law School professor Deborah Hellman recently
put the draft of her law review article, "<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2021188" target="”_blank”">Defining
Corruption and Constitutionalizing Democracy</a>" (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.<br>
<br>
1. <b>Corruption as a Deformation of Judgment.</b> 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.<br>
<br>
2. <b>Corruption as the Distortion of Influence.</b> 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:<ul>
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</ul>
3. <b>Corruption as the Sale of Favors.</b> This theory says that anything
a legislator does is okay, so long as the legislator does not
exchange a vote or favor for something of value. This is the view of
corruption clearly stated by the majority opinion in the <i>Citizens
United</i> decision, where corruption is only "quid
pro quo corruption." This theory does not even recognize the
validity of government ethics.<br>
<br>
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).<br>
<br>
4. <b>Corruption as a Breach of Fiduciary Duty.</b> The Supreme Court, just
last year, in a conflict of interest case, <i>Nevada Commission on
Ethics</i> v. <i>Carrigan</i>, 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.”<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
203-859-1959