Ethics Laws for Government Officials
Rick Garlikov

The claim from Montgomery is that Alabama now has the strongest ethics laws for government officials. If so, it bodes ill for other states, not well for us in Alabama.

According to the Birmingham News (2/3/11), “Members of the Alabama Ethics Commission said that portions of the state's new ethics law are vague and confusing.”  Apparently “ethics” commissioners and legislators cannot tell what is right or wrong without having specific rules like two year olds.

While I understand the point of the fundamental legal principle that there should be no crime and no punishment without a specified law that has been broken (nullum crimen sine lege, nulla poena sine lege), it seems to me that first, it is false as a fundamental general principle, and second, even in the kinds of cases where it is true, we carry it too far sometimes – particularly in “ethics” laws.  We currently require spelling out specific infractions for there to be any “ethics” violation possible by government officials. Such detailed enumeration of specific infractions allows too many loopholes for too much mischief. It is legalism, not ethics.

 The principle is false because adults, particularly educated adults, ought to know in many cases that a behavior is wrong even if there is no specific law against it – particularly if the reason there is no law is that such a cruel or stupid act, or the means to do it, were never anticipated to occur. Also, if you have to defend actions by saying “technically, no law was violated” you probably know the act you did was wrong. Looking for a merely semantic way to legally avoid punishment for something you know is shady, deserves to be considered morally wrong and shameful.  And actually employing a merely verbal loophole in order to get away with what you know, or should know, is wrong, deserves to be a punishable crime. 

 Now the reason for the principle “there should be no crime without violation of a stated law” is to guard against abuse by those who would prosecute others for acts they simply personally do not like.  But on my view the safeguard against that abuse would be a pre-trial jury verdict that the act one is being accused of having done is not wrong and cannot be prosecuted.  Moreover there should also be a rule that if some majority of the jury thinks you are being unfairly prosecuted for something which is a crime only in the mind of an overzealous, narrow-minded prosecutor, it is the prosecutor who will suffer an appropriate penalty, commensurate with the harm of his prosecution.

 But the ethics legislation case is the one I am specifically concerned about here.  If anyone cannot understand what counts as “inappropriate personal gain from public office” without having it expressly spelled out for them in laws listing specific behaviors, then they should not be the people in charge of making or enforcing laws for the rest of us because they have no basic sense of right and wrong or good and bad in the first place.  

 The main ethics law needs to simply state that no one should accept any inappropriate personal benefit from their official position in public office; and no one should offer such benefits to a public official.  Let special panels in minor cases or juries in major ones decide guilt or innocence and that will then make government officials be wary not only of acting inappropriately but of giving the appearance of doing so.  They won’t have to, or be able to, justify their acceptance by saying it didn’t really affect their vote, as they so often say now. The problem in some cases, such as free lunches, is that even if a public official is not selling their vote or service, they are still selling access to them as a government official, which gives an unfair influence to those who have means to pay for that access.

 Now, clearly representatives of large groups should have a voice because they represent the voices of many people whose interests and desires should be known to government officials.  But they should have access to government officials only in the same ways ordinary individual citizens do – through office appointments and meetings, petitions, letters, e-mail, editorials, op-ed letters, or articles like this one.  They should have to persuade through the power of their reasoning, not the pleasure of their gifts.  One, for example, doesn’t have to be flown (with one’s spouse) to a resort in the Caribbean to discuss the needs of the Alabama Bankers Association, whose headquarters are in Montgomery.  One doesn’t need to attend the Iron Bowl as guests of Alabama or Auburn in order to get to know the needs of the universities.  And one doesn’t need to be a guest in the skybox of Alabama Power at a Braves or Falcons game to meet with officials from the utility to find out what legislation or regulatory guidelines they argue are in the best electrical power interests of the citizens of Alabama.

 There may be some borderline cases over which people can reasonably disagree, and there may be behaviors which no one reasonably would have thought were inappropriate until someone had the insight that showed it.  Those cases should not be criminal or punishable retroactively even if prohibited in the future.  The guiding maxim in any borderline case would probably be the prudential one “when in doubt, don’t”.  In some cases, one might accept part of an offer but not other parts.  For example, if one has to visit somewhere for an extended stay in order to observe conditions which need governmental attention, if the only decent accommodations available offer extra or separable amenities which would be considered by the average person to be a luxury or nice gift, then a government official should not use those the luxury parts if possible or should pay a proportion of the bill that reasonably reflects his/her usage.  E.g., a typical hotel continental self-serve breakfast would not count, but an extravagant buffet breakfast or lunch which were included in the day rate, would.

 As to campaign contributions, since the Supreme Court counts them as free speech in a ruling at odds with language, it seems to me that the best way to deal with contributions is not to make them public, as they do now to little avail, but to make them anonymous, so that candidates cannot know who gave them how much.  Contributions should go through independent auditors charged with dispersing them to the candidates to whom they are given, but withholding the names of the sources, and even the individual amounts. That way, contributors can support the causes and candidates of their choice financially while not (giving the appearance of) bribing or extorting them.  If contributors are truly interested in promoting policies instead of purchasing policy-makers, they will still be able to exercise the right to contribute.

 In short, those who make or enforce laws in the State of Alabama ought to have enough sense and sensitivity to do so without receiving inappropriate personal benefits for doing their job right – even if there is no complete list of which behaviors specifically count as inappropriate personal gain.  If they don’t have that modicum of sense, and they receive personal gifts from people who seek public favors, then for minor violations they should be fined. For somewhat more serious ones they should lose their position, and for very serious ones, they should be imprisoned.  In the less serious cases, independent citizen panels should decide guilt or innocence and appropriate penalty; and for the more serious cases, there should be a criminal trial in a court of law.  This shouldn’t take rocket science or esoteric legal analysis.

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