The Thicket at State Legislatures

Expulsions of State Legislators are Rare

The expulsion of a member from a state legislature is a fairly rare event. Last week's expulsion of Steven Brooks as a member of the Nevada Assembly brought the total number of legislators expelled from state legislatures to 19 during the last 50 years. Here's the list:Going back to 1757, our historical list includes another 19 state or colonial legislators expelled before 1963 or a total of 38 throughout American history.

A rose from The Thicket to Brenda Erickson.

Model Code of Conduct Stands the Test of Time

by Karl Kurtz

Sixteen years ago, a group of legislative staff, part of NCSL's Legislative Staff Coordinating Committee (LSCC), published a Model Code of Conduct for Legislative Staff. The group spent two years working together to find common ground and ways to reconcile differing practices from state to state.

Peggy Kerns, director of NCSL's Ethics Center, says, "This is a really valuable document. We use it all the time in our ethics training. It has stood the test of time. It's genuinely a model of how to develop an ethics code."

Butch Speer, clerk of the Louisiana House of Representatives, says, "In 1993-94, I was honored to chair the task force charged with drafting the model code. I had the good fortune to have a team of dedicated and enthusiastic legislative staffers from across the country representing the different disciplines of legislative staff.  Cooperatively, we worked through many hours crafting a model code that speaks to the mission of legislative staff as well as to specific principles of conduct that express the highest ideals of our professions."

In January of 2012, LSCC adopted an amendment to the model code to incorporate new language about the importance of civility, inspired by a civility intiative undertaken by 2010-11 NCSL President Sen. Richard Moore, Massachusetts. The civility section reads:

Civil

A legislative staff member respects the rights of individuals to hold different opinions, and speaks truthfully without accusation or distortion, and avoids heightened rhetoric when serving the legislature. 

Comment: A legislative staff member who demonstrates civility chooses words carefully and understands that staff actions or communications reflect directly upon legislators, and ultimately, the legislative institution.  The actions of a legislative staff member reflect upon the legislature as an institution, and staff, by default,  represent the institution. Civility requires an acknowledgement of opposing views and the right of others to hold those views.  It does not suggest or require acceptance or agreement with those opinions.  A civil staff member understands that attempts to distort the opinions or reputations of others oftentimes result in a reciprocal effect upon the institution.   A civil legislative staff member is careful to remain civil in his or her own interactions, and thus serve as a positive example of maintaining and promoting  civility within the legislative institution.  

Washington Legislative Staffer Sues for $1.75 Million Over a Hostile Work Environment

One of the characteristics of the work environment of legislative staff that makes their jobs different from most others is the large number of bosses--legislators--that they may have to respond to. When staff come into conflict with one or more of their principals, difficult situations can result. From an AP story in the The Herald (Everett Washington):

A Senate Republican senior attorney is seeking a $1.75 million settlement from the state, saying a hostile work environment has been created by allowing a controversial senator back into the GOP caucus and restoring her access to staff in exchange for a vital budget vote.

In a document obtained Wednesday by The Associated Press, an attorney for Republican Senate Counsel Mike Hoover says that Hoover felt pressured to quit so that the caucus "could more easily make a trade with" Sen. Pam Roach, R-Auburn....

Roach was banned from the Republican caucus two years ago after an investigation concluded that she had mistreated staff. GOP leaders wrote in a letter to her that they had concluded that she should be physically separated from other members and staff.

They implemented policies barring Roach from the caucus room and deemed her ineligible to participate in caucus votes. The letter did say the policies could be re-evaluated in one year with the mutual agreement of the caucus and Roach.

The punishment followed numerous incidents with Hoover, culminating with an "unusually vicious attack" in 2009, according to the 15-page document sent Monday to Tom Hoemann, the secretary of the Senate. In that incident, the document says, Roach yelled at Hoover during a meeting with the rest of the caucus....

NCSL Takes on the NYTimes Editorial Board, Defends States

by William Pound

On Thursday morning, I sent a letter to NCSL members in regards to a recent editorial in the New York Times (“The States Get a Poor Report Card"), March 20, 2012). The editorial commented on why “most statehouses can barely be trusted to maintain the rudiments of good government” and drew the conclusion that “without deep reforms, they certainly should not be asked to handle more federal programs on which millions rely.”

I called this a flawed conclusion from a questionable study ranking the states on ethics, disclosure, transparency and campaign finance reform. The study was conducted by the Center for Public Integrity and is largely based on the number and strength of the laws a state has in these areas, not the state’s actual practices, nor the public’s view and support of the 50 state legislatures.

I pointed out in my letter to members that innovation in domestic policy—such as education, social services, environment, transportation and criminal justice—has come from state legislatures in the last several decades. "And this leadership has been demonstrated among the diverse states in our federal system, all while maintaining balanced budgets,. Our nation would benefit from a greater understanding of the major public policy role played by state legislatures and state governments and the fact that their actions reflect public opinion in our democratic system."

I concluded that The New York Times failed to recognize the strong role states play in our federal system. I also wrote a letter to the editor of the Times, which the paper ran on Thursday.

William Pound is executive director of NCSL.

[Slight modifications to the voice, although not the content, of this posting were made on Mar. 30, 2012.]

The Legacy of Rushworth Kidder

by Peggy Kerns

Rushworth Kidder, a respected ethicist and author, died March 5. Sadly, an ethical voice is silenced.

Dr. Kidder –Rush, to most folks–founded the Institute for Global Ethics in 1990 following a successful career as a journalist with the Christian Science Monitor, where he served as a foreign correspondent, editor and senior columnist. He authored 12 books and hundreds of articles and columns. His 1994 book, Shared Values for a Troubled World: Conversations with Men and Women of Conscience, was praised by Bill Moyers, television commentator, who said, "Only Rush Kidder would have made this odyssey, and only Rush Kidder could have returned with such a valuable cargo of insights."

I first learned of Kidder in 1999, when NCSL hired me to create an ethics center at NCSL. To help me get started, I went to Columbus to hear Rushworth Kidder speak at an event sponsored by the Ohio Ethics Commission. Kidder's one hour speech was incredible. He challenged us to think about our ethical and moral values and how we apply them to our lives. He said something I'll never forget–people who have well-defined values may agonize over choices that may be easy for others. I wrote down his quote, "Sound values raise tough choices, and tough choices are never easy."

The following year I took his 3-day training in Ethical Fitness© at the Institute for Global Ethics in Camden, ME. With the institute's help, I adapted its training for legislators and legislative staff.

Chutzpah Defined

by Karl Kurtz

An information request the other day about policies regarding state legislative interns running for office while they are working for the legislature uncovered an old story that I had not read before. In Minnesota in 2002 a legislative intern attempted to run for the legislature--against the legislator for whom he worked.

The story, as told by Jack Penchoff in State Government News (go to p. 7), is that an old friend of ours, Rep. Phyllis Kahn, took her intern, University of Minnesota student Jason Samuels, to lunch to thank him for his service to her during the legislative session. After she told him that she would be glad to write a recommendation for him, he handed her a press release announcing that he was running against her!

After Rep. Kahn challenged him on his ethics and made it clear that she was planning to run again, he initially backed down from running and apologized for the timing of his announcement--without admitting to any ethical transgressions. He later reneged, though, and filed to run against her on the Green party ticket, only to have his name eventually bounced from the ballot by the state Supreme Court because he did not live in the district. From State Government News:

"To My Great Shame"

by Peggy Kerns

Convicted felon Jack Abramoff stood before the Kentucky legislature and bared his soul, opening up about his years as a Washington lobbyist and his conviction for fraud, tax evasion and conspiracy.  Though he has spoken at Harvard and on hundreds of television and radio programs, this was his first time speaking to a state legislative body.

“I thought of myself as a strategic adviser, not a lobbyist,” he said.  “I believed I was doing what everyone else was doing–only I was doing it better,” Abramoff added. “I always thought−if it’s worth doing, it’s worth overdoing.” He attributed this arrogance to thinking he was above the law.  “I lost sight of the line in the sand and of right and wrong,” he said. “To my great shame.”

From his prison cell, Abramoff decided that he had a base of knowledge that he should not waste. To try to rectify his crimes, his new mission is to educate lawmakers and the public about how the system should be reformed. 

Abramoff spoke at the annual ethics training sponsored by the Kentucky Legislative Ethics Commission. Previous speakers included respected names such as Norman Ornstein, American Enterprise Institute, and Rushworth Kidder, Institute for Global Ethics.  This year, the commission reached beyond “safe” speakers and brought in Abramoff.  His speaking fee of $5,000 is the price the commission normally pays.  In Abramoff’s case, his fee goes toward his $44 million debt in court-ordered restitution to Indian tribes and other clients.  He also is promoting his book, Capitol Punishment: The Hard Truth About Washington Corruption From American’s Most Notorious Lobbyist. 

Initially, the appearance of Abramoff was controversial among many Kentucky legislators. After hearing his speech, some changed their minds.  Legislators from both sides of the aisle thought Abramoff had significant things to say, according to the Courier-Journal.  Speaker Greg Stumbo said the talk will help lawmakers discern what is proper in their relationships with lobbyists.  Rep. Mike Harmon said he had some reservations initially, but believes Abramoff made some good points and was worth the speaking fee.

Economics and Ethics

by Peggy Kerns

In his weekly column, Rushworth M. Kidder, president of the Institute for Global Ethics, asks, “Are we in a double-dip ethics recession?”

When the last recession began to hit in 2008, we at the Institute started examining evidence of a connection between economics and ethics. As scandal after scandal erupted in the financial sector…we asked whether the economic collapse arose not from innocent financial forces but from a vast ethical meltdown. Summarizing our work in 2009, we published The Ethics Recession: Reflections on the Moral Underpinnings of the Current Economic Crisis.

So we were pleased to see the Financial Crisis Inquiry Commission explicitly making the ethics link in its 545-page report last February. Pointing to “a systemic breakdown in accountability and ethics” as one of six fundamental causes of the crisis, its authors noted that “the integrity of our financial markets and the public’s trust in those markets are essential to the economic well-being of our nation.”…And that got us wondering whether we could put a metric to the idea of an ethics recession.

Broadly speaking, they (recessions) happen when GDP has been shrinking for two consecutive quarters. By analogy, might an ethics recession happen when a nation’s public integrity has been in decline for a similar period?  

How might this be measured?  Kidder says one way is through public opinion, which has not been favorable to Congress or the administration. If people agree that core values are honesty, fairness and responsibility, Kidder believes that Congress “indeed has lapsed into moral decline.”  He writes that:

Its institutional behavior over the summer raised serious questions about the truthfulness of what both sides portray as facts, about the sense of justice and fairness to citizens present and future, and about the duty of elected officials to find ways to compromise in order to prevent stalemate and paralysis. 

Though much of Kidder’s column is devoted to the national scene, he raises issues that can apply to all levels of government. In our ethics trainings, NCSL’s Center for Ethics in Government asks participants to name the ethical values they bring to their jobs. The group votes on their top values and then defines the values and how they apply to their work. Honesty is always on the list and defining it is easy for the groups−truthfulness and never lie.  Further discussions reveal that this definition is not so easy. When presenting a bill do you tell the whole truth about its impacts? In dealing with the opposition, do you withhold information? On the campaign trail do you make promises that are politically expedient but you might not be able to keep? Do you exaggerate facts about your opponent? Do you let others lambaste an opponent so you remain squeaky-clean?

Polls show the public distrusts government and public officials and confidence in them has eroded. If we follow Kidder’s model, then doesn't everyone in the public sector have a moral obligation to correct this perception and bring us out of an ethics recession?

Supreme Court Upholds Nevada Conflict of Interest Law

The U.S. Supreme Court yesterday unanimously overturned a Nevada Supreme Court decision by ruling that a legislator's vote is not free speech protected by the First Amendment and therefore can be regulated by conflict of interest laws.

The case involved a Sparks, Nevada city council member, Michael Carrigan, who did not recuse himself on a casino proposal on which his campaign manager was a consultant. Carrigan argued successfully before the Nevada Court that his vote was free speech and could not be regulated by conflict of interest laws. The issue was broad enough in its implications for legislatures at all levels that 14 states joined Nevada in the appeal to the Supreme Court.

According to the Washington Post:

The court’s unanimous decision overturned a Nevada Supreme Court decision that said public officials’ votes were a form of constitutionally protected self-expression. In an opinion by Justice Antonin Scalia, the court said laws requiring legislators to recuse themselves from voting on issues in which they have an interest “have been commonplace for over 200 years.”

In announcing the decision, Scalia said that when a public official votes, he is not acting as an individual but as a “political representative engaged in the legislative process.’’

“Acting in that capacity, his vote is not his own speech but a mechanical function of government,” Scalia said.

Justice Alito filed a concurring opinion but objected to Justice Scalia's characterization of a legislator's act of voting:

Justice Samuel A. Alito Jr. did not fully join Scalia’s opinion that voting was only a “symbolic act” that was a function of a legislator’s office, rather than an expression of personal views.

Legislators as Lab Rats?

by Karl Kurtz

Yale University political scientists Daniel Butler and David Broockman have recently published an article, "Do Politicians Racially Discriminate against Constituents? A Field Experiment on State Legislators." Their research consisted of sending a fictitious e-mail message to approximately 4,800 state legislators with a request for assistance in registering to vote. Some of the messages were sent using an apparently white name (Jake Mueller) and some under a stereotypical black name (DeShawn Jackson).

They found that 61 percent of the legislators responded to the Jake alias and 55 percent to DeShawn--"a statistically significant difference of 5.1 percentage points (p=0.04)" (p. 14). They conclude:

Overall, we find that the putatively black requests receive fewer replies. We explore two potential explanations for this discrimination: strategic partisan behavior and the legislator's own race. We find that the putatively black alias continues to be differentially treated even when the emails signal partisanship, indicating that strategic considerations cannot completely explain the observed differential treatment. Further analysis reveals that white legislators of both parties exhibit similar levels of discrimination against the black alias. Minority legislators do the opposite, responding more frequently to the black alias.

It's tempting to quibble with the methodology and findings of this research. For example, while the differences are "statistically significant," is the small difference of 5 percent meaningful? Would the differences have disappeared if the "Jake" and "DeShawn" messages had included home addresses in the legislators' districts? Many legislators receive hundreds of e-mails a day and perform triage on them by responding only to the ones identifiably from their own districts. Certainly the response rates would have increased if it were an identifiable constituent making the request.

But my bigger concerns are the ethical issues of political scientists performing this kind of research.

Writing in a Washington Post blog, Ezra Klein calls this research "simple and elegant." That's one point of view.

I think of it more as treating legislators as lab rats: Performing an experiment by telling them a lie and then measuring how they respond. Ring a bell and see if they salivate.

It's a little bit like the FBI creating a crime and then trying to ensnare public officials in it. Only the political scientists' deception doesn't have an FBI sting's justification of uncovering corruption. The only saving grace is that this study reports only group behavior, not individual responses, so there's no "gotcha." There is, however, a profound disrespect for the work that legislators do, the enormous demands many of them work under, and the idea of public service.

To their credit, the authors address the ethical issues of performing experiments on public officials (pp. 12-14). They defend their research design as meeting a standard for experiments on publlic officials that they ascribe to the eminent political scientist, Robert Putnam: If it's only "slightly deceptive, but innocuous and highly revealing," then it's OK to make work for public officials.

When I asked Alan Rosenthal, an equally noted political scientist, about this, he mused, "How is 'slightly deceptive' a defense for deception? What do you think political scientists or the media would say if a legislator defended his or her misbehavior as 'slightly corrupt, but harmless and profitable?' They would make a joke of an elected official who said this."

Now that I've biased you with my rant on this subject, you can weigh in with your own opinion in this poll:

 

8/25/11 Update: Another study of legislator responsiveness to fictitious constituent requests--this one from South Africa--has drawn further attention to the ethics of experimental academic research. See "Politicians Like Constituents Like Them" in The Monkey Cage and ensuing thoughtful comments about research ethics.