The Ethics of Legislating : The Business Was Meant to Be Messy, but the Purpose May Be True

You’ve probably heard the old saw about the irate constituent who calls her state legislator:

“My trash has been sitting on the sidewalk for two weeks! Do something about it!” Her voice is very insistent, barely civil.

The legislator responds. “I deal with state issues, not local matters. Why don’t you call the garbage collector?”

Without missing a beat the constituent replies, “Oh, I didn’t want to start out that high.”

State legislators are the Rodney Dangerfields of government. They get no respect.

Part of the reason we think so little of our statehouse and congressional representative is an understandable reaction to the history of scandal that has been a regular feature of legislative life in the United States for most of the past 100 years.

In the late 19th Century, companies often had legislators on their payrolls as semi-official representatives of their interests. The railroads were particularly adept at this practice in Congress and particularly in statehouses. In more recent years, we have had Abscam in the Congress and legislators being convicted of crimes of corruption in Texas, Massachusetts and New York, to name just the first three that come to mind.

In that light, no one can claim that legislatures and legislators are paragons of virtue. But it makes no more sense to judge all legislators by the performance of the worst of their lot than it does for doctors, baseball players or society as a whole. We misunderstand the legislative process if we let criminal law become a standard for ethical performance. The recent FBI sting operation in California, in which law-enforcement officials apparently set up Abscam-like dummy corporations and then used undercover agents to record and videotape alleged extortion efforts by legislators and their staffs, is an opportunity to consider broader questions about the role that legislatures play in governing and differences between violations of law and violations of ethics.

The independent legislative branch is a distinguishing feature of American government. They are free to be mirrors of the community, representing individually and collectively the strains and stresses of society, reflecting those different tensions but playing them out within the halls of government, not in the streets.

This understanding of the role of the legislature suggests ethical standards by which to assess individual legislators and legislatures. When legislators come back to us as voters and ask for renewal of their contracts at election time, it is particularly appropriate to think about the standards upon which their performance ought to be assessed. If the purpose of the independent legislature is to give full vent to the issues and concerns that are present in society, then it is the content and process of legislative activity to which we have to turn to look for ethical performance. Have the merits been considered? Have the issues been raised? Have the range of individual legislative perspectives been aired? Has your state legislator contributed to this process or subverted it?

We should not expect legislatures to be neat, rational and efficient debating societies. They are designed to be messy and emotional and political. This also means that we should not judge the ethics of legislatures by the number of members who were indicted for violations of criminal law.

For example, from an ethical, rather than a legal point of view, there is nothing wrong with the legislator making money as a result of being a legislator. There is also nothing inherently unethical about a legislature seeking financial support from people who have an interest in what the legislature does. The issue is whether that support compromises legislators’ judgment. So, in that sense, even extortion is not an appropriate focus for a discussion of legislative ethics.

In the California case, the implication is that legislators may have tried to extort money from companies in return for sponsorship and/or passage of bills. If proven, that would be a violation of the law.

But violation of ethics, not just the law, is also a consideration. If legislators sponsored bills or supported them regardless of their merits, or if they drafted the bills so that the real purpose would be camouflaged, hidden from not only the public but from their own colleagues as well, they would have breached their ethical responsibilities and undermined democratic government.

So when you think about your legislator’s performance as you prepare to vote this fall, you might consider not only whether the legislator stayed above the criminal law, not only whether he or she voted the way you would have voted, but also did he or she meet the ethical responsibilities of legislative office as well.

Here are some questions to ask when trying to assess whether your legislator has been an ethical legislator as well as a lawful and representative one: Did he or she know the merits of the issues and consider them? Did he or she use the legislative process to encourage or inhibit consideration of the issues? Was he or she open to colleagues and with you in identifying the real purposes behind legislation and the rationale for it? It is not easy to get answers to these questions; getting the answers requires a voter who takes the time to know.

Legislators, like the rest of us, have an obligation to follow the law. They also have an obligation to represent our views.

Beyond that, they have the ethical obligation to keep clear the real purpose of legislation, to use the legislative process to encourage deliberation and to vote on bills based on the merits. A legislator whose conduct in office undermines the purposes of legislatures has committed a breach--which in the long run is more serious and more consequential than the legal transgressions or life-style antics that too often dominate the news.