Scrutinizing Strict Scrutiny in a Government Ethics Context

Anonymous

Thu, 12/09/2010 - 07:18

Post-Employment/Revolving Door

This week the <a href="http://cogel.org/" target="”_blank”">Council on Governmental Ethics Laws</a> (COGEL) met in Washington,
D.C. and, as usual, I learned about a lot of cases and matters I didn't
know about. I will be sharing some of the more
important of my new revelations in blog posts over the next couple of
weeks. 
 
I referred to the decision in <a href="http://docs.justia.com/cases/federal/district-courts/ohio/ohsdce/1:2009…; target="”_blank”">Brinkman
v.
Budish</a> (S.D.
Ohio Feb. 17, 2010) in <a href="http://www.cityethics.org/content/broward-county-commission-should-not-…; target="”_blank”">a
June
blog post</a>, but I didn't dig into it, since my argument was
that it was irrelevant to a matter a county attorney insisted it was
relevant to. 
 
What this decision does is apply a First Amendment free speech strict
scrutiny standard to an ordinary revolving door representation
provision that relates to Ohio state legislators. I believe that strict
scrutiny is inappropriate to this situation, because government
officials are not like ordinary citizens. Officials have obligations that no
one else has. The Brinkman decision talks a lot about rights, but does
not use the words "duty" or "obligation." Do we really want a democracy
in which government officials have rights that are not offset by
obligations? Is that really how we want to read the Constitution? 
 
The Brinkman case is similar to legislative immunity cases. In both sorts of case, a legislator (here, a former legislator) seeks to undermine an ethics provision by taking the position that it is unconstitutional. What makes the Brinkman case blameworthy is that his situation was special — he wanted to represent a nonprofit advocacy organization — and yet he raised constitutional issues that apply far beyond this special situation. The court added insult to injury by considering these issues unnecessarily and without reference to a government officials' special obligations.

Compelling Government Interests 
Strict scrutiny means that the
state must show that the provision "furthers a compelling government
interest and is narrowly tailored to achieve that end." The state
provided the following three compelling government interests: 
 
(1) to prevent unethical practices of public employees and public
officials, that is, to prevent legislators from taking official acts in
exchange for employment as a lobbyist immediately upon leaving the
legislature; (2) to promote, maintain, and bolster the public’s
confidence in the integrity of state government because of past
instances of government corruption; and (3) to prevent unequal access
to the General Assembly by outside organizations by virtue of any
significant relationships with current and former public officials who
may be in a position to influence government policy. 
 
Government Ethics and Quid Pro Quo Corruption 
The court acknowledges that preventing corruption and the appearance of
corruption are compelling government interests, but then surprisingly
turns to the Supreme Court's <a href="http://www.scotusblog.com/wp-content/uploads/2010/01/citizens-opinion.p…; target="”_blank”">Citizens
United
decision</a>, quoting it as saying that this is "limited to quid
pro quo corruption." Not only did Citizens United deal with independent
expenditures by corporations, not elected officials (who themselves passed
the ethics laws), but the majority decision in Citizens United is
highly questionable in light of past case law. Limiting ethics laws
to proof of quid pro quo corruption is to turn ethics laws into
criminal laws. 
 
Here is what Justice Stevens said in his Citizens United dissent (pp
56-57):<ul>
Undergirding the majority’s approach to the merits is the claim that
the only “sufficiently important governmental interest in preventing
corruption or the appearance of corruption” is one that is “limited to
quid pro quo corruption.” Ante, at 43. This is the same “crabbed view
of corruption” that was espoused by Justice Kennedy in McConnell and
squarely rejected by the Court in that case.540 U. S., at 152. While it
is true that we have not always spoken about corruption in a clear or
consistent voice, the approach taken by the majority cannot be right,
in my judgment. It disregards our constitutional history and the
fundamental demands of a democratic society. 
 
On numerous occasions we have recognized Congress’ legitimate interest
in preventing the money that is spent on elections from exerting an
“‘undue influence on an officeholder’s judgment’” and from creating
“‘the appearance of such influence,’” beyond the sphere of quid pro quo
relationships. ... Corruption can take many forms. Bribery may be the
paradigm case. But the difference between selling a vote and selling
access is a matter of degree, not kind.</ul>

Do Government Officials Have Obligations Beyond Ordinary Citizens? 
Government ethics exists in a place short of quid pro quo corruption.
That is one of its reasons for existing. To say that government ethics
is unconstitutional because of a case involving independent
expenditures by corporations is deeply irresponsible. To say this is to
say that government officials have absolutely no obligations beyond a
corporation, that, in the words of Justice Stevens, our democracy
places no demands on them whatsoever. Their free speech rights are the
same as anyone's, and anything they can consider free speech, be it
voting for their brother's contract or representing a developer on one
side of a matter weeks after representing the government on the same
matter, is protected by the constitution. 
 
How Important Is the Money? 
The district court judge did go on to say that, to the extent the
former legislator was paid for his lobbying, this makes the state's
interest compelling. But it isn't the fact that a legislator is paid
for his lobbying that makes the lobbying unethical, except to the
extent there might have been a deal with the client to act in its favor
while the legislator was still in office. Such a view would allow a
legislator to lobby for free while receiving his compensation
otherwise, say, through other legal work for the same client. Or take the example above: if you represent your brother in a contract you worked on for the government, does it really matter if your brother pays you or not? 
 
It is the lobbying itself, in matters related to government work or to
people who were colleagues and subordinates, that makes the revolving
door a sign to citizens that their government officials are corrupt pawns of
special interests rather than representatives of those who elected
them. The money is secondary. 
 
Leveling the Playing Field or Misuse of Office? 
The court calls the state's third compelling interest "leveling the
playing field." But it's not. This is a term that, once again, applies
to money, not to the obligations of government officials. It is not
considered a compelling interest for campaign finance laws to try to
level the playing field among candidates. But it is a compelling
interest for ethics laws to prevent officials from using their office,
including their relationships with subordinates and others who owe them
favors, to benefit themselves and others. To prevent this is to prevent
a misuse of office, not to level the playing field. The state worded
this compelling interest poorly, but that does not change the nature of
the government's interest in preventing misuse of office. 
 
How Long? 
The court goes on to look at whether the revolving door provision is
narrowly tailored to achieve the ends of the state's compelling
interests. With respect to the provision's year-long limit on
post-employment representation, the court says, "Defendants have not
articulated or presented evidence to establish that the temporally
limited restriction adequately addresses the concern against quid pro
quo corruption." 
 
It is very difficult to come up with hard and fast evidence of what
time period would be best. One year is considered a standard length of time; some ethics codes
extend it to two years, but no further. Practically, the time period is
related to what legislators would be willing to put up with. Otherwise,
it would be related to some concept of turnover and aging of debts;
that is, after how many years would an official not be able to call in
his colleagues' and subordinates' debts to him, to the benefit of his employers? 
 
Requiring a legislature to prove the correctness of a post-employment
time period could not hold up to a different sort of scrutiny. Not only
is it extremely difficult to prove, but this proof is being asked of a
legislature restricting the activities of its own members, not of
ordinary citizens. Far less proof is required when legislators are
restricting themselves for reasons they find compelling. 
 
All or Nothing? 
The court finds the post-employment representation provision
over-inclusive as well, "because it does not restrict other behaviors
or activities of former members of the General Assembly that might give
rise to actual or perceived corruption, such as the acceptance of gifts
or offers for employment unrelated to lobbying." This is a fascinating
finding, because it implies that an ethics code cannot do things
halfway. If a legislature is going to prohibit one thing, it must
prohibit everything, or at least a sufficiently large number of things
to satisfy a court. This dictum would require that every ethics code be as complete as possible. I'll bet we don't hear this dictum quoted by officials writing ethics codes. 
 
Uncompensated Lobbying 
It is unusual that this provision restricts uncompensated lobbying, but
this is because those who write ethics codes are usually far too
focused on money, for different reasons than the court. It is far too
commonly believed that conflicts of interest involve only situations
where there are financial benefits, often only direct financial
benefits. This is a narrow view of conflicts, based partly on the fact
that "interests" and "financial interests" are considered synonymous. 
 
As this blog has shown, there are many other ways to personally benefit
from one's office. And uncompensated lobbying can be one of them. An exception could have been made for uncompensated lobbying done for nonprofit organizations, but even there, there is the possibility that a nonprofit is merely a front for one or more special interests. Such nonprofits are becoming increasingly common. 
 
What I don't understand is that if the court feels that uncompensated
lobbying should be allowed, why did it go beyond that statement?
Effectively, the rest is all dicta, but it is damaging dicta, poorly
thought through and treated as if it was far more than dicta. This is
irresponsible on the court's part. 
 
According to <a href="http://www.dispatch.com/live/content/local_news/stories/2010/05/04/stat…; target="”_blank”">a
May 4 article in the Columbus Dispatch</a>, the state of Ohio chose not
to appeal this decision, effectively arguing that it would be throwing
good money after bad. I think the money would have been well spent. An
appellate decision couldn't have been any worse than this one. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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