The Virtuous Circle of Ethics Laws and Legislative Immunity -- And the Legislators Who Stand Outside of It
Back in June, in the middle of <a href="http://www.cityethics.org/node/450" target="”_blank”">a long blog entry</a> on
legislative immunity, I referred to the virtuous circle that includes
both ethics laws and the Speech or Debate Clause, which provides
legislators immunity from interference from the executive and judicial
branches. I would like to focus on this virtuous circle, and explain it
further, because I think it might be the most important argument in
support of continued independent ethics jurisdiction over legislators
at every level of government.<br>
<br>
The principal goal of ethics laws is to have government officials put the public interest ahead of their personal interests. In
the most basic and most relevant ethics law, an official with a
conflict between his or her personal interests and the public interest
is required to withdraw from participation and voting with respect to
the matter (recusal). In other words, the public interest in having an official
act in the public interest, or not at all, is considered more
important than the official's obligation to represent his or her
constituents. This balance is at the heart of all ethics laws. And
ethics laws are a relatively recent concept, not taken into account
when the Constitution was written.<br>
<br>
The principal goal of the constitutional Speech or Debate Clause is to prevent
legislators from participating and voting on matters with an eye to
protecting their personal interest, specifically, their interest in not
being sued or prosecuted. If a legislator were to allow the threat or
fact of a suit or prosecution based on legislative activity to affect
his or her participation and voting in a matter, there would be two
solutions. Recusal would solve the conflict created by the threat or
fact of a suit or prosecution, but it would let this threat or fact
succeed, at least in part, thereby undermining the legislator's obligation to
constituents. The better solution, and the one chosen by the writers of
our Constitution, is to take away such a threat or fact of suit or
prosecution, so that the legislator can represent the public interest.<br>
<br>
In both situations, the goal is the same: putting the public interest ahead of a legislator's private interests. The two situations sit
across from each other on a virtuous circle. On one side, the personal
interest is self-originated and, therefore, there is no way to get rid
of it (when the personal interest becomes an issue, it's too late for
the legislator to do anything about it). The solution is recusal. On
the other side of the circle, the cause of the personal interest is
imposed from the outside and, therefore, it can be gotten rid of, can
be made harmless by protecting the legislator, so that nothing is imposed on the legislator.<br>
<br>
Also, on the Speech or Debate side of the circle, the issue is how the
legislator will participate and vote, the content of his or her
legislative activity. On the other side of the circle, the issue is
whether the legislator will participate and vote at all, the fact of
his or her legislative activity. Ethics enforcement has nothing to do
with the content of legislative activity, which is what concerned the
authors of the Speech or Debate Clause.<br>
<br>
Sitting as they do on opposite sides of the same virtuous circle --
both protecting the public interest over personal interests -- recusal
and the Speech or Debate Clause do not conflict.<br>
<br>
State courts have recently ignored this virtuous circle, and focused on
jurisdictional issues, finding that only fellow legislators can
question and wield authority over legislators when they are acting in a
legislative capacity. But the Speech or Debate Clause, although
referring to "any other place," was intended to apply to the executive
and judicial branches, and all cases involving the Clause until this
year dealt solely with these two branches. Ethics bodies created by a
legislature are part of neither the executive nor the judicial branch.<br>
<br>
The ethics commission is an odd sort of body completely unanticipated
by the writers of the Constitution or by the common law that preceded
it. If a legislature believes that an independent ethics body is
preferable to self-regulation, there is nothing in the Constitution to
prevent this, and allowing such a body to enforce ethics laws does not
take away any rights from legislators, nor does it prevent them from
freely representing their constituents <span>when the legislature has determined that
an official with a conflict cannot freely or adequately represent
constituents.<br>
<span><span></span></span><br>
</span>The facts tell a different story than the recent state court
decisions. Many state and local government legislatures have allowed
independent bodies to have jurisdiction over their conduct. In fact, many legislators have done this because they could not police themselves, and scandals occurred.<br>
<br>
Some
legislatures have created mixed bodies of legislators and citizens,
which the recent cases would also, I presume, consider
unconstitutional.<br>
<br>
A serious argument could be made that the members of
an independent ethics body should be appointed by the legislature
only, and this happens to be both the norm and the preferred choice of most
government ethics professionals.<br>
<br>
The other important fact is that legislatures have a horrendous record
dealing with their members' misconduct. The U.S. Congress is only the best-known example. Self-regulation of ethics not only doesn't work, but it
is more political and personal and injurious to public trust than
independent ethics enforcement.<br>
<br>
Speaking of facts, what has really been going on in Louisiana, Massachusetts, and Nevada is that legislators there do not want to be
seen as taking authority away from an independent body and giving it to
themselves. They would rather have courts do this, so they can be seen
as protecting their constitutional right to speak for their
constituents. But they are actually acting unethically, spending large
amounts of taxpayer funds to fight suits when they could easily have
passed statutes turning jurisdiction over to a legislative ethics
committee.<br>
<br>
These legislators are thinking only of themselves. Their
goal is in no way to protect the public interest. They stand outside
the virtuous circle.<br>
<br>
I should add that the only legitimate case brought is that in Rhode Island, where the legislature did not institute the ethics code. Instead, it came through a constitutional amendment prepared by a constitutional convention. Therefore, the Rhode Island legislature could not have taken jurisdiction over ethics matters by itself. It needed court approval. On the other hand, the fact that ethics jurisdiction was determined by a constitutional amendment makes the Rhode Island Ethics Commission's case that much stronger, since the only issue is how to harmonize two constitutional provisions.<br>
<br>
<span>Other blog entries on
legislative immunity:</span><br>
<a href="http://www.cityethics.org/node/450" target="”_blank”">Louisiana</a><br>
<a href="http://www.cityethics.org/node/560" target="”_blank”">Massachusetts</a><br>
Rhode Island <a href="http://www.cityethics.org/node/562" target="”_blank”">1</a> and <a href="http://www.cityethics.org/node/581" target="”_blank”">2</a><br>
Nevada <a href="http://www.cityethics.org/node/554" target="”_blank”">1</a> and <a href="http://www.cityethics.org/node/571" target="”_blank”">2</a><br>
<a href="http://www.cityethics.org/node/451" target="”_blank”">Additional reading</a><br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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