More than half of the nation’s state legislatures have no independent oversight of elected legislators’ ethical conduct, the Center has found. A survey of state ethics offices reveals that only 23 states have independent commissions that have at least minimal authority to investigate or enforce violations of ethics rules.
In ten of those states, ethics agency heads said the legislature they oversee used the budget writing process to punish their commissions or limit their effectiveness.
In 27 states, there is no independent body to regulate unethical conduct by lawmakers. Four states — Michigan, North Dakota, South Dakota and Vermont — have no formal ethics statutes covering conduct of legislators. Seven legislatures, including Michigan, created independent ethics commissions that regulate the conduct of executive and judicial branch officials, but exempt the state legislature. Another nine created independent agencies to oversee disclosure laws for the legislature. However, they do little beyond collecting the disclosure forms. Eight states added oversight of legislative ethics to the responsibilities of the secretaries of state or attorneys general.
In most of the 27 states without independent oversight, lawmakers regulate themselves through a committee process, similar to that of the U.S. Congress. The House Committee on Standards of Official Conduct and the Senate Select Committee on Ethics — both of which are comprised exclusively of members of Congress — are charged with reviewing and interpreting ethics rules for members. They also enforce those rules.
“It’s very difficult for a non-independent, partisan group to be able to judge their peers. I don’t think it works at the federal level and I don’t think it works in the states that have that,” said Alan Plofsky, director of the Connecticut State Ethics Commission.
Scope of the survey
The study, conducted between October 2000 and October 2001, surveyed how states monitor and enforce ethics and disclosure provisions among state legislatures. No two states handle legislative ethics exactly the same way, so Center research focused first on the types of oversight, including ethical conduct, personal financial disclosure and campaign finance disclosure.
The survey divided agencies into categories based on the degree of autonomy from the legislature, the extent of staffing and funding resources approved for the agencies, statutory authority, enforcement capabilities and activity, as well as accessibility to public record of agency actions.
In addition to the survey questions, which were answered by various officials, the Center interviewed executive directors of all the independent ethics agencies, who provided insights and reflections about the history of ethics laws and the systems currently in place. The Center also scoured Web sites and combed through statutes of all 50 states to obtain as much information as possible about the practices in each state.
Watergate an ethical watershed
Many states got their first ethics law in the wake of the Watergate scandal. Watergate — the criminal conspiracy that began with a botched break-in and ended with the resignation of President Richard M. Nixon — sent shock waves through federal, state, and local governments. Before the scandal, most governmental bodies had no specific laws prohibiting elected officials from using their offices for personal gain, let alone bodies to interpret and punish government corruption. Voters assumed that officials, from the president on down to volunteer mayors in small towns, would adhere to general principles of honest service or, in some cases, vague and ill-defined references to honorable public service in documents like the federal or state constitutions, or town charters.
Watergate sent American lawmaking bodies scrambling to codify what, precisely, was meant by honest public service and, in some cases, to create agencies to interpret and enforce these new “ethics laws.” The U.S. Congress and state legislatures across the country drafted complex laws requiring government employees and officials to disclose their sources of personal income and campaign funding, adhere to rules for official conduct, and answer to new bodies created to oversee those rules. Only one state — Hawaii, in 1968 — had established an ethics commission prior to the scandal. By 1979, 22 other states established outside oversight. The new ethics agencies were intended to reassure the public that something other than honor ensured the integrity of public officials.
A thousand-to-one ratio
Twenty-three states have outside oversight of ethical conduct of members of the legislature. Adding the nine states that have outside oversight of legislative disclosure laws, there are 32 states in which independent commissions have some oversight of the conduct and disclosure filings of the legislature. However, the Center learned those agencies maintained adversarial relationships with the lawmakers they regulated and were often ill-equipped to enforce the regulations due to inadequate funding or staffing, or weak enforcement or investigation mechanisms.
Ten independent state ethics agencies did not receive funding increases that exceeded the rate of inflation — 7 percent — between 1997 and 2000. At least 13 had ratios of more than 1,000 “subjects” of the ethics statute – legislators, political appointees, public employees, etc. — per staff member. This stretching of an agency’s resources makes it difficult to keep track of the thousands of disclosure forms, and nearly impossible to closely monitor each subject. Perhaps as a result, 12 of the commissions had not ruled against a sitting lawmaker regarding a conduct violation in the last five years.
Policing their own
Critics of such lax enforcement said minimal regulation was preferable anyway. Many of them argue that state legislatures should not fall under the authority of independent ethics commissions in the first place. They point out that, in constitutional democracies, the three branches of government — executive, legislative, and judicial — are supposed to remain separate and should, therefore, be left to regulate themselves.
“The legislature does have a right, as a separate branch of government, to police its own members,” said Frederick M. Herrmann, director of New Jersey Election Law Enforcement Commission — an executive branch agency that collects lawmakers’ financial disclosure forms but has no authority over the conduct of the legislature.
Many experts in the legislative process argue that, with strong and unbiased leadership, legislatures can — and do — effectively regulate themselves.
Effective ethics committees?
Members of the U.S. Congress monitor their peers’ adherence to ethics laws. Kathleen Hall Jamieson, dean of the Annenberg School for Communication at the University of Pennsylvania, pointed to the congressional investigation of former Speaker Newt Gingrich. In 1997, the House Committee on Standards of Official Conduct issued a reprimand and a $300,000 penalty to Gingrich for using tax-exempt funds for political purposes and giving inaccurate information to the ethics committee. Jamieson, who has written several books on politics and advises media organizations — including the Center — on political coverage, asserted that legislatures can effectively regulate their own ethics.
Alan Rosenthal, a professor at the Eagleton Institute of Politics at Rutgers University in New Jersey who has written extensively on the topic, has worked with legislatures in many states on ethics issues. He asserted that self-regulation is preferable “because I believe that, whenever possible, the legislature should take responsibility squarely for its ethics. And I think they can.”
Rosenthal cited the case of Maryland Democratic state Sen. Larry Young, who was accused of using his public position for personal gain. While Maryland, like New Jersey and 29 other states, requires its lawmakers to file personal financial disclosure statements with agencies outside the legislature, it leaves the business of policing the ethics of its legislators to the Joint Committee on Legislative Ethics (JCLE). The JCLE found that Young had violated ethics and disclosure provisions by using his office to benefit undisclosed personal interests, and the Maryland General Assembly voted to adopt the committee’s recommended punishment, expulsion. Young was later indicted on corruption charges in connection with the case and then acquitted at trial.
In fact, in the Larry Young case, the JCLE’s investigation was not the result of any deliberate audit of Young’s behavior or disclosure forms, but rather a Baltimore Sun exposé that became the centerpiece of the JCLE’s case against Young. Absent the Sun’s reporting, Rosenthal said he does not think the JCLE would have investigated the Young case.
Even if the Maryland Ethics Commission had been aware that Young didn’t fully disclose his economic interests on the statements he was required to file annually with the agency, they could not do anything about it, according to John O’Donnell, who was executive director of the commission until he retired in June 2001. That’s because that commission, which has complete regulatory oversight of the executive branch, can only fine lawmakers for late filing but can’t audit the content of their statements. That is left to the JCLE, which — like most legislative ethics committees — meets behind closed doors when considering action against legislators.
Behind closed doors
South Carolina’s Ethics Commission also leaves the regulation of legislative ethics to legislative committees and, like the JCLE, South Carolina’s ethics committees have the option of meeting behind closed doors. Herbert H. Hayden, executive director of the state ethics commission, told the Center that the confidentiality of legislative ethics proceedings creates the possibility that a lawmaker could be punished for violating ethics law without the public ever knowing. “Because the complaint process and the investigative and subsequent hearing are all confidential, [a legislative ethics committee] can receive a complaint and take action and censure or fine someone and no one would know that it even existed. They don’t have to release anything,” Hayden said.
That is assuming the ethics committee meets at all. In Colorado, ethics regulation and enforcement in each chamber is handled on a case-by-case basis by special committees called into session to handle a specific complaint. Carl Jarrett, the Colorado legislative analyst who staffs the House Ethics Committee, said it has met twice in his 14-year tenure. (On both occasions, the committee determined that no violation had occurred.) In Colorado’s upper chamber, there’s been even less activity. “The Senate hasn’t had a chance to invoke its ethics rule,” he noted.
A similar situation prevails in Arizona, where Jim Drake, the legislative analyst who staffs the House Ethics Committee, told the Center that the committee had not met in two years.
Not a workable system
In interviews with directors of state ethics agencies across the country, official after official expressed doubts that state lawmakers could effectively regulate and monitor the ethical conduct of their peers.
They cited partisan politics, self interest, fear of retribution, friendships, a reluctance to make judgments against someone whose support a legislator may later need, and a lack of institutional knowledge of the statutes and precedent as impediments to effective self-regulation. They also noted that without public scrutiny as a spur, lawmakers had little impetus to overcome these impediments.
“I think [self-regulation] is generally not a workable system,” said Frank Daley, executive director of the Nebraska Accountability and Disclosure Commission, which oversees all phases of the Cornhusker state’s ethics law as it pertains to the legislature. He called self-regulating legislatures “systematically flawed” by partisanship.
Carol Williams, executive director of the Kansas Governmental Ethics Commission, agreed. “There’s just no way [legislative ethics committees] could deal with that in a fair and impartial manner. I just don’t see how that could work,” she said of a self-regulating legislature. William’s commission has handled all aspects of the legislature’s ethics since 1974, when the state’s Governmental Ethics Law was passed.
In Iowa, the Ethics and Campaign Disclosure Board monitors and enforces all phases of the state’s ethics laws for executive branch employees and officials but handles only campaign finance rules for legislators. While the ethical conduct rules that apply to the legislature are similar to those governing the executive branch, the legislature has sole responsibility for regulating itself, explained Kay Williams, former executive director of the board, who was interviewed before she retired from that position.
“The legislature polices its own ethics. And nobody ever says that without laughing,” Williams told the Center, explaining that members of the legislative ethics committees in both chambers are appointed anew each session and are charged with advising their peers and enforcing ethics rules with which they may be largely unfamiliar.
“Guess who calls me all the time to ask me advice on how to give out their rulings? The legislators,” Williams said. While members of the public can make a complaint of unethical behavior by a legislator to the ethics committees, complaints “are not filed very often, and I don’t think there have been too many that have been considered to be of merit by the ethics committees,” she added.
No right to know
Williams stressed that neither she nor the public can really know for sure precisely what the ethics committees do — or don’t do — with complaints because the committees are not required to make their deliberations or decisions public. Rosenthal, the Princeton professor and ethics adviser, argues that the lack of sunshine is necessary to preserve the due process rights of an implicated lawmaker.
“There’s a certain degree of privacy that should be accorded,” Rosenthal said of lawmakers under investigation for possible violations of ethics rules. He explained that the press or political opponents could use information revealed in committee to smear a lawmaker who may later be exonerated.
But in many states, the process is still further removed from public scrutiny. In Georgia, where the legislative ethics committees trump the state ethics commission in matters affecting legislators, only legislators can file complaints against other legislators. That doesn’t happen often, according to Theodore Lee, executive secretary of the Georgia Ethics Commission.
Lee laughed when asked if the members of the state’s standing committees in the House and the Senate could effectively police their peers: “One of [the committees] I think last year met for the first time in four or five years,” he said.
Michigan lawmakers have neither ethics committees nor an independent commission watching over them or advising them on ethics matters. “There’s no place for the legislature to go [for ethics interpretations]. … It’s really pathetic,” said Karen Holcomb-Merrill, director of Common Cause Michigan, which has lobbied the legislature for tougher ethics laws. In 1973 the legislature set up a Board of Ethics but gave it oversight only over executive branch employees and appointed officials. The Michigan legislature has never passed a set of laws regulating their own conduct.
Three other states — North Dakota, South Dakota and Vermont — have no formal statutes that apply to ethical conduct of legislators. Of the three, only North Dakota has a statute that enables the legislative council to appoint a legislative ethics committee to prepare chamber ethics rules.
Preserving their power
While state ethics officials across the country told the Center that they believed independent, autonomous ethics commissions more effectively regulated the conduct of lawmakers than legislative committees, legislators in many states do not seem convinced.
Georgia’s Lee told the Center that lawmakers in his state have not even discussed the possibility of ceding the power to self-regulate to his ethics commission. “They chose to hang on to those prerogatives. I think as a general axiom of human behavior, those who hold power don’t generally decide to relinquish it and diminish their power voluntarily.”
South Carolina’s Hayden told the Center that enough voters there question the ability of legislators to diligently police themselves that “there have been a couple of bills in the past to bring the members of the legislature under the ethics commission. But I don’t believe one [bill] has ever even gotten out of the subcommittee” because of legislator opposition to ceding the power to self-regulate.
It takes a scandal
While Watergate was the impetus for many state legislatures to create independent ethics commissions, others waited until scandal hit home.
Kentucky made due with a self-regulating legislature until a scandal rocked the statehouse in 1992, implicating the Speaker of the House and other high-ranking lawmakers. The legislature quickly passed a new ethics law and created the independent Legislative Ethics Commission, which in 1993 assumed full oversight of legislative ethics.
In four states — Arkansas, California, Oklahoma, and Rhode Island — it took voter approval of a ballot initiative to wrest the power of self-regulation from those states’ legislatures and give it to outside agencies. In Rhode Island and Oklahoma, the initiative went one step further, embedding the powers and duties of the commissions in those states’ respective constitutions.
The Oklahoma Ethics Commission and Rhode Island’s agency are the only two commissions that can create ethics rules for the legislature and prosecute violations of those rules as civil infractions. The Oklahoma Ethics Commission would never have been granted such wide-reaching powers were it not for the 1990 ballot initiative, executive director Marilyn Hughes told the Center.
In 1978 the Connecticut state legislature, under lingering post-Watergate public pressure and faced with what current ethics commission director Plofsky now calls “the bankruptcy of the … in-house legislative ethics committees,” created the ethics commission and gave it regulatory oversight of the legislature. “And I can tell you they are not happy with the results,” Plofsky told the Center. “But it is kind of hard to undo once you do it.”
‘Regulatory Pariahs’
It may be hard for legislatures to do away with an independent ethics commission, but lawmakers can limit the ability of a commission to regulate, according to ethics directors across the country. Director after director told the Center that legislators in their states have challenged commissions’ authority, cut budgets, maneuvered to have zealous directors fired, and even sought to eliminate entire commissions.
Martin F. Healey, the former executive director of and chief prosecutor for the Rhode Island Ethics Commission, is a case in point. In April 2001, the commission voted to dismiss him from his position, in part over a matter involving the fees of an outside attorney hired to look into the state’s gift ban rules. Healey, interviewed by the Center while he was still in office, said lawmakers resent the wide range of powers his commission wields over the legislature. In Rhode Island, those powers are provided for in the state constitution. “The fact that we have jurisdiction that broad over the legislature, I think carries with it at least the potential for problems because we can be perceived as the enemy.”
Rhode Island’s commission has been called a “regulatory pariah,” and one angry legislator reportedly asked, “Who the hell do they think they are?” It has been challenged in lawsuits brought by the legislature, one of which was heard by the state Supreme Court, which in 1999 ruled in favor of the legislature.
“My judgement is that the Rhode Island commission has more authority than it should have,” said Rosenthal, explaining that lawmakers in Rhode Island and other states with strong commissions may take exception if “the commission seems to be targeting legislators.”
Bill Hain, executive director of the Maine Commission on Governmental and Election Practices, said the legislature created his commission to placate the public rather than to have meaningful oversight of the legislature. “As a result of the cynicism that was raised by Watergate, the legislature felt public pressure to fix the perception” of corruption, Hain said.
Hain said that some legislative critics try “to assert authority over the commission” while others merely treat the commission and the ethics laws it enforces as a nuisance.
Connecticut’s Plofsky, on the other hand, can tick off from memory a list of legislative efforts to abolish his commission or limit its power and said “there have been separation of powers claims made against us in some of our cases saying we’re illegally constituted.
“There have been attempts after we’ve had a significant case against a legislator to cut our budget — in some cases to abolish the commission and have us meld or consolidate with another agency. And that’s very troublesome because every year we have to go back to them for our budget,” Plofsky said.
The budget cudgel
Plofsky’s concern is a common refrain among directors of ethics commissions that have oversight of the legislature, many of who told the Center that legislators in their states under-fund the watchdog groups in an effort to decrease regulatory and investigative abilities.
“We’re regulating the purse strings,” said Iowa’s Williams, adding that sometimes legislators who have incurred the wrath of her commission are in charge of allocating the commission’s funding, and could cut its budget. “[I]t makes a person wonder. Hopefully, most everybody in Iowa is honest and wouldn’t do that.” Still, Williams said, “we fight every year for money.”
Ten commission directors told the Center they felt the legislature in their state used the budget writing process to punish their commissions or limit their effectiveness. Center research found that two of 32 independent state ethics agencies — Missouri’s and Montana’s — had their budgets cut back between 1997 and 2000, by 15 percent and 22 percent respectively. Another eight commission budgets increased less than 7 percent during the same time period.
“People are loath to fund agencies that have the responsibility for regulating them. It’s not a surprise,” said Healey, the former executive director of Rhode Island’s commission. “Like every director of an agency that has watchdog responsibilities, we certainly think we need more money. I think objectively, it’s pretty clear that watchdog agencies are on the lower end of the totem pole for getting resources,” he said, adding that the Ocean state legislature’s budgetary oversight of his commission amounts to “a check and a balance.”
The California Fair Political Practices Commission, which was created by general ballot referendum in 1974 and is still considered by many to be a model state ethics agency, does not have to worry about budgetary reprisal from the legislature. That’s because it has a fixed budget from the state’s general fund, which is adjusted for inflation and other factors. Connecticut’s Plofsky said in his state “there’s been some discussion of maybe giving us a fixed base budget of what we have now and increasing it based on inflation.”
In some states like Kentucky, where Legislative Ethics Commission director Anthony Wilhoit said lawmakers adequately fund his agency because it would look bad to do otherwise, the threat of negative publicity is enough to keep the dollars coming. But in others, curmudgeonly budgeting has already damaged effectiveness.
Penny pinching prevents potency
“We do not have sufficient personnel to do our job,” because of funding shortfalls, said L. Patrick Hearn, executive director of the Oregon Governmental Standards and Practices Commissions.
Even the constitutionally established Oklahoma Ethics Commission, which executive director Hughes asserted is the most powerful ethics commission of any state, falls prey to the legislature’s short arms and deep pockets come budget time. The legislature “has always watched every penny that went to the ethics commission,” Hughes said, adding that her agency “has always been under budgeted.”
Hughes relayed the story of the commission’s first year of existence in 1987, when the commission had two staffers and got only $100,000 from the legislature, despite Hughes’ protestations that they needed more to function. They couldn’t afford furniture, Hughes said, so they stacked boxes. They eventually resorted to borrowing from other agencies: “We had old desks that were falling apart. Nothing matched. We just didn’t have any money,” Hughes says now with a chuckle.
While the commission in 2000 is up to seven full-time staffers and a nearly $500,000 annual budget, they still don’t have enough funding or staff for Hughes’ liking and the consequences are more significant than clashing furniture: “Any large investigations would be beyond our scope,” Hughes said.
Hayden, whose South Carolina Ethics Commission does not oversee the conduct of the legislature, told the Center that the legislature’s control of the appropriations process is enough to make him glad his commission has a limited role. “Our concern is the fact that the legislature makes all of the decisions on our budget and so consequently it would put us in a very precarious position — trying to enforce the law on people who are going to turn around and hold the purse strings.”
In Montana, the legislature enacted a law in 1995 that created an ethics commission, but rather than limit its budget, lawmakers never appointed any members. The law was repealed in 2001. The office of the Montana Commissioner of Political Practices, which has been in place since 1975, deals with lawmakers’ outside interest and campaign finance disclosures.
Autonomy a key
While critics of in-house ethics regulation frequently cite the partisan allegiances of committee members as one of the more significant impediments to fair and effective regulation by ethics committees, some ethics professionals question whether appointed commissions are any better.
Of the 32 states in which an independent ethics commission has some oversight of the legislature, only three — California, Hawaii and Massachusetts — have no members appointed or confirmed by the legislature. Twelve commissions have some members appointed by the legislature; the remaining 17 have members that are all recommended or approved by the legislature. While most require members to be balanced numerically between the two major political parties and many stagger terms, some believe appointees will become beholden to the official or party by whom they were appointed.
“They [the commission members] are expected to [support the allies of the official who appointed them] much more so than when it was set up by statute [from 1986-1990]. Now we have a very partisan FEC-type set-up,” said Oklahoma’s Hughes about her commission, which consists of five appointed voting members — one each appointed by the governor, the attorney general, the chief justice of the state Supreme Court, the senate president pro tem, and the speaker of the house.
Robert Stern, director of the Los Angeles-based Center for Governmental Studies, was one of the drafters of the California Political Reform Act that created the state’s Fair Political Practices Commission. He extends the critique of appointed commission members one step further. Stern asserted that even if the legislature has to approve appointments made by others, those appointees become “pawns of the legislature pawns of the legislature because of commitments made to the legislature in order to secure confirmation.” He added, “Confirmation makes it more difficult to be truly independent of the political process. But it is far better to have statewide officials making appointments, even with confirmation, than to have the legislature making the appointments. The best appointment system is for statewide officials, preferably the governor, to make the appointments without confirmation by the legislature.”
The governor appoints two voting members of the California Fair Political Practices Commission, while the secretary of state, the attorney general and the state controller each appoint one commissioner.
Above politics
But most directors of ethics commission with members appointed by the legislature told the commission that their commissions were not influenced by political concerns.
In Alabama, the governor, lieutenant governor and the speaker of the house jointly appoint the commission’s five members, who are confirmed by the state senate. Ethics commission director James Sumner told the Center that, despite the manner in which it is chosen, “Our commission is about as far removed from politics as you can get and still have it be politically appointed.”
Sumner said that the five-year terms of appointees are staggered, preventing the commission from becoming dominated by members who may be loyal to a single administration.
Graham Sloan, executive director of the Arkansas State Ethics Commission, bragged about the autonomy of his five commission members, who are appointed one each by the governor, lieutenant governor, attorney general, speaker of the house, and senate president pro tem. “I don’t think any of the commissioners base their decisions on who appointed them,” Sloan said, citing as proof a sanctioning of the governor handed down by the commission, which at the time had two members appointed by that Governor.
Even in Kentucky, where all nine voting members of the Legislative Ethics Commission are appointed by the legislature (four each by the Speaker of the House and the Senate President and one by the joint leadership of both houses), director Anthony Wilhoit asserted his confidence that the commission could rule impartially on a matter involving a legislator. “I think we’re pretty independent,” he said.
Getting the politics out of ethics
While some assert it is impossible for a committee of legislators to objectively interpret and enforce ethics laws among their peers, some states have taken steps to de-politicize legislative ethics committees.
In Washington State, the Legislative Ethics Board, which is charged with interpreting and enforcing legislative ethics, is comprised of four legislators and five citizen members, currently including a retired community college professor, a retired newspaper editor, and a former Supreme Court Justice.
“The idea was that, if there was to be a perception of fairness and an exchange of ideas, not just an in-house mechanism for taking care of things, [then] you needed some input from people with a different perspective,” explained Mike O’Connell, counsel for the board.
Alaska’s Select Committee on Legislative Ethics has five public members among its nine appointees, while New Jersey’s Joint Legislative Committee on Ethical Standards, a standing committee with full-time non-partisan staff, includes four public members in addition to eight legislators.
Herrmann, director of New Jersey’s independent election commission, said that, while ethics committees are not as autonomous as independent commissions, bringing on non-legislators as voting members of a committee can help set the committee apart from the political jockeying that could stand in the way of impartial judgment. “There are better ways to structure legislative ethics agencies than many of the legislatures are doing today,” Herrmann said.
Investigative powers vary
But Herrmann is quick to point out that even the most independent commissions or committees are not effective unless they have the power to investigate violations and enforce the laws.
The example of the Maryland Ethics Commission, which could not look into the accuracy of State Sen. Young’s disclosures, illustrates a common problem: many independent commissions that handle only disclosure for the legislature act as a repository for such forms but are unable to audit the statements for accuracy or completeness.
Center research showed that, of the 31 independent ethics commissions, 25 have full audit authority to look into the content and accuracy of filings. Of the 17 outside commissions that collect lawmakers’ campaign disclosure statements, all have full audit authority.
However, rulings against lawmakers are few and far between. While, among the 32 agency directors surveyed, 29 did report finding against a legislator for violating a filing requirement, only 10 said their commission had ruled at least once in the past five years that a serving lawmaker had violated provisions governing ethical conduct.
Six state agencies do not have the power to make their investigative findings of violations binding upon legislators. All other state agencies do publish legislator names when their investigative findings become public, but more than half of those states do not post investigative findings on their Web sites for easy public access.
But 31 independent commission directors told the Center that their agency could subpoena lawmakers in connection with an investigation of possible violations of ethics laws. Thirty commission directors said they could initiate their own investigations into suspected violations of ethics laws by legislators, as opposed to needing a complaint to act.
Lacking a big stick
Regardless of how strong an agency’s investigative powers of the legislature are or how many times it makes a finding against a lawmaker, Herrmann asserted that having comprehensive ethics laws is only half the battle. “Over the years, I saw that all these articles were being written about how we need tougher ethics laws, but nobody was addressing the fact that ethics agencies couldn’t enforce these laws. It was a farce. If you’re going to have a meaningful law, you’ve got to have it meaningfully enforced,” New Jersey’s Herrmann said.
While 25 directors of state ethics agencies with oversight of the legislature told the Center that violations of some ethics laws by lawmakers can be prosecuted as criminal infractions, only one of those commissions – the Nebraska Accountability and Disclosure Commission – could actually prosecute lawmakers themselves. The others have to refer the matter to a prosecuting authority like a local district attorney or the attorney general.
In Florida, the ethics commission – which oversees the conduct of the legislature – can only take investigations of legislators through the probable cause phase, then it must refer the matter to the legislature for decisions on whether to issue findings or punishments.
While 11 directors of independent ethics commissions told the Center that their agencies could recommend that the legislature remove a member for violations of the ethics law, only Rhode Island’s can actually remove a lawmaker. That has never happened, according to Healey, the former director, who added, “you wonder, if push came to shove in the courts, whether or not [the law addressing removal] would stand up as applying to legislators.”
The power of the press
Hain, the director of Maine’s ethics commission, said that one mustn’t overlook the “the penalty of negative publicity,” which he said can be more effective than even the most powerful ethics commission’s provisions.
Oklahoma set out to harness the power of public scrutiny by establishing a “public reprimand” penalty, which the commission utilized several times and to great effect since its inception, according to Hughes, the commission director. Legislators fear getting their names “on the front page of the paper,” Hughes said, explaining that the reprimand, more than any other penalty, has a deterrent effect.
While Hughes asserted that public perception is “the bottom line,” the public may be hard pressed to form perceptions about their government, as coverage of state legislatures is not a high priority at many newspapers and television stations.
Electorate: the ultimate judge
For press coverage to be effective, however, the electorate must be engaged. “The legislature is the most popular branch of government,” New Jersey’s Herrmann noted. “They have to answer directly to the people.”
But what if the people don’t care whether their officials are abusing elected offices?
The Louisiana Board of Ethics in 1998 fined state Sen. Charles D. Jones $7,500 for violating the state’s conflict of interest laws by voting on legislation that impacted three companies in which his family had substantial economic interests.
Grier, an investigator for the board remembered that “it was a pretty big deal.”
“There were people up there [in Jones’ northern Louisiana district] who were extremely upset about this but apparently not [upset] enough,” Grier told the Center. Jones won re-election in 1999.
“It’s the privilege that the electorate should have, whether they want a rogue in [office],” Rosenthal argued.
In a 1988 case that still ranks as one of the most notorious handled by Maine’s ethics commission, two state senators and one state representative were found to have violated ethics laws by attempting to exert their influence over the Maine Real Estate Commission to dismiss a case against a friend of one of the lawmakers. Both of the state senators found to be in violation have continued their political careers with little discernable backlash; John E. Baldacci is one of Maine’s current representatives in Congress, and state Rep. John L. Tuttle, Jr., now chairs the House committee that oversees the ethics commission’s budget.
Teaching right from wrong
“My personal desire is to eliminate the need to have to assess penalties,” Hain told the Center. He wants to make sure lawmakers know the rules and are able to avoid violations, a sentiment echoing the majority opinion of ethics directors under whose jurisdiction legislators fall.
After the Tuttle-Baldacci case, Hain said the ethics commission began an “ethics seminar” program through which the commission explains the rules to all lawmakers before the start of each session.
The commission also encourages lawmakers to seek advisory opinions when they are unsure about how the ethics rules apply to a given situation, an outlet offered by all 32 commissions. However, less than half of the agencies disclose the requesting lawmaker’s name in their published opinions, and seven states have no opinions or summaries available on their Web sites.
“Fortunately, many of the legislators view this agency as a resource – we bend over backward to provide information and advice short of issuing formal opinions,” said Nebraska ethics director Daley. “The philosophy is that we advise the legislators before they do something, rather than play ‘gotcha’ after the fact.”