Brown: Ethics law should put public interest ahead of personal gain

Zephyr Teachout’s Corruption In America: From Benjamin Franklin’s Snuff Box to Citizens United is ostensibly not a book about ethics. However, the author has a lot to say that is relevant to that topic, particularly her definition of corruption as “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 law for South Carolina that is comprehensive, substantive, sufficiently constraining and appropriately consequential if violated. Getting that done will be no easy task. Any time this issue comes up, legislative defenses rise, and instead of asking what serves the public interest first and foremost, legislators attempt to carve out niches to 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 legislators must forgo those associations and business contacts in which they would otherwise be free to engage were they private citizens.

Ethics laws are designed to prevent (or, if deterrence fails, punish) the corruption of public officials — and through them, the fundamental principles of representative government. So 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 that induces legislators to base their votes on interests other than those of the body politic is corrupt, whether illegal or not.

A corrupt act, then, does not have to involve a quid pro quo transaction. It just has to be wrong, to appear wrong and to undermine the public good.

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

One solution is for voters to make the issue of legislative ethics the single issue upon which they will base their vote — to refuse to vote for any candidate unless and until that candidate supports comprehensive ethics reform. It might take that level of politicking to produce the ethics law that is needed.

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

The failure of the 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 January 31, 2016 at 4:00 PM.