Make ethics the number one issue in legislative elections this year

“Corruption In America: From Benjamin Franklin’s Snuff Box to Citizens United” is ostensibly not a book about ethics. However, the author, Zephyr Teachout, has a lot to say that is relevant to that topic, particularly as she defines corruption: “…excessive private interests in the public sphere; an act is corrupt when private interests trump public ones in the exercise of public power, and a person is corrupt when they use public power for their own ends, disregarding others.”

This definition establishes the perfect paradigm for discussing, drafting, and enforcing an ethics code in South Carolina which is comprehensive, substantive, sufficiently constraining, and appropriately consequential if violated. Getting that done will be no easy task.

Anytime this issue comes up, legislative defenses rise, and legislators attempt to carve out for themselves niches which protect their status quo. From financial disclosure, to legislators’ relationships with donors, to the allocation of state contracts and other public business, the public interest must be paramount, even to the point where serving legislators must forgo those associations and business contacts in which they would otherwise be free to engage were they private citizens.

Furthermore, since the corruption of public officials - and through them, the fundamental principles of representative government - is what ethics laws are designed to prevent (or, if deterrence fails, to punish), unethical and corrupt behavior are inextricably linked.

The absence of a strict ethical code of conduct for legislators, objectively enforced by an independent body, engenders the kind of corruption defined by Teachout, the subordination of the public interests to private ones. Note that nowhere in that definition does it say an act has to be illegal to be corrupt. Illegal acts, to be sure, are corrupt, but any act, illegal or not, which induces legislators to base their votes upon interests other than those of the body politic as a whole is corrupt.

Thus, at least for the purpose of legislative ethics codes, a corrupt act does not have to involve a quid pro quo transaction. The courts, as a matter of criminal law, have pretty much limited the scope of the law on this subject to quid pro quo transactions, but ethics codes are not just about what is illegal. They are also about what is wrong, what appears to be wrong, and what undermines the public good - about corruption as defined by Teachout.

This issue garners too little public attention and demand for change. Ethics issues, in the abstract, do not excite the emotions and interests like tax issues or some social issues do. Yet they are far more important to the healthy functioning of representative government. One might think that cynicism among the body politic would catalyze public action on the matter, but cynicism in this case has bred low expectations and resignation.

One solution to this problem is for each and every voter to make the issue of legislative ethics the single issue upon which they will cast their vote. It might take that level of politicking to produce the ethics legislation that is needed.

Law professor Lawrence Lessig describes the two elements of this corrupting influence: “The first element is bad governance, which means simply that our government doesn’t track the expressed will of the people….The second element is lost trust: when democracy seems a charade, we lose faith in its process.”

The failure of the S.C. General Assembly to adopt a comprehensive, substantive, sufficiently constraining, and appropriately consequential ethics law perpetuates that charade and is a tacit endorsement of bad governance.

This story was originally published February 8, 2016 at 7:38 AM with the headline "Make ethics the number one issue in legislative elections this year."