Utah's Unethical Ethics Initiative - Major Flaws

from http://www.heraldextra.com/news/opinion/editorial/article_ec8e1343-8304-5686-b6c6-3539ed48ad7d.html posted 10/4/2009, 12:00 AM

A group called Utahns for Ethical Government will be passing around a petition during the coming year asking Utah voters to create an independent ethics commission and a code of conduct for the Legislature. It sounds good on the surface. But if ever the devil were in the details of a reform proposal, this is it.

The assumption is that legislators have been, or can be, easily corrupted. With a passing reference to the Founding Fathers and common sense, the petition puts it this way: "It is the nature of power to corrupt ... [U]nchecked power and unlimited money create circumstances where a clear vision of the public interest becomes blurred by self-interest, favoritism, and a sense of entitlement."

It's true the Founding Fathers weren't naive about human nature. In the end, however, they trusted the people to be the ultimate judges of leadership performance.

Utahns for Ethical Government, however, thinks another check is needed: an ethics commission -- and it could be right in general terms. Trouble is, the group's initiative outlines no standards of ethics for its commissioners even though nobody can be deemed immune from the temptation to use position power for his or her self-interest or for ideological advantage.

So who will police those who police the Legislature? How will the danger of political influence be kept away from commissioners? Why should anyone expect them to resist the pull of self-interest any more than legislators can?

Promoters of the ballot initiative say they are seeking "independent minded" people to be on the panel. Presumably these folks won't fall prey to the corrupting blandishments of money and power, for themselves, families or associates. Wouldn't that be nice?

Sure, but it's possible in only one situation: that ethics commissioners be devoid of any of the financial, political, social or family ties that are said to corrupt legislators. That means, however, that the ethics panelists would have to be orphans who grew up to become hermit monks living under vows of poverty. Of course, that's unreasonable.

The initiative group envisions, among other things, that "[e]ach member shall have demonstrated integrity through leadership and service; ... [e]ach member shall be educated and experienced broadly in ethical matters." Yet one can hardly qualify under this standard without having being enmeshed with political parties or tied to other social or business interests.

It's hard to imagine a plausible candidate who had none of the sorts of ties and interests that are alleged to be toxic temptations for legislators.

But the ballot petition also lists as a requirement -- repeat, a requirement -- that "[e]ach member, even where formally affiliated with a particular party, shall be ready, willing, and able impartially to require ethical conduct from all legislators of whatever political persuasion ... ."

Is this for real? How could that possibly be determined? This is not be a matter of having a very small pool of Utahns to choose from; it would be a feat to find any.

Since the ancient Greeks, intellectuals have yearned for a squad of philosopher kings, enlightened monarchs, or well-educated technocrats who could rise above the ambitions and emotions that so often impede political progress. Sadly, however, on the rare occasions that such a rarefied class of human beings seems to rise, they show themselves to be as flawed as anyone else.

Today's initiative pushers, however, seem to think they've hit upon a scheme for ensuring that only impartial and ethical people are picked for the commission.

This is a daydream.

The idea is that the Speaker of the House and the President of the Senate (both of the majority party), along with two minority leaders (one from each house of the Legislature), would have to agree unanimously on the pool of 20 candidates from which five names would be drawn from a hat. Those five would constitute the ethics panel.

Yet there's a dangerous land mine buried here. Even this seemingly innocuous first step raises the specter of politics. Think about it: how often do the leading Democrats and Republicans agree unanimously on anything? So what happens if they deadlock on picking the pool of panelists?

Could a minority be motivated to stall for political reasons -- perhaps to throw the pool to someone else with whom it is ideologically aligned? Yes. This scenario rises in plain black and white.

The petition says, " .... If the leadership fails unanimously to select all 20 candidates ... the sponsors [of the initiative], by no later than August 1, 2011, unanimously shall select the 20 candidates."

Did we hear that right? Unelected sponsors of a ballot initiative have given themselves the authority to name the pool for the ethics commission? Yes. And this is just plain wrong.

And who are the "sponsors," as defined by this measure? The first 5 signatories -- Chase Peterson, Carol Peterson, Karl Snow, Cassia Dippo and Jordan Tanner. You may have heard of some of them, or maybe not. Either way, the composition of the ethics panel would be strongly influenced by this self-selected group under a specific circumstance that is not at all unlikely.

These five "super czars," as they've been dubbed, would report to no one, not even to the voters. There is no check or balance on their behavior, their personal ethics or their official acts. The initiative immunizes them from any action by any court.

Mind you, a politically motivated scenario is not something that merely could happen; it appears likely to happen. There is plenty of incentive for the legislative leaders of the minority party to withhold approval of commission candidates if he or she believes the super czars will be more sympathetic to their political agenda.

In short, the process is structurally flawed in a significant way. It quietly shifts power to five unelected, unappointed people.

One need not doubt the zeal of the super czars, or their belief that they would be doing the right thing. But history has shown that zeal and the belief in the righteousness of one's cause can be as corrupting as power or money, and maybe more so.

In this, as in other significant points, the ethics drive runs counter to the American way.

In our system, the people select their leaders, then at intervals weed out those who become arrogant or corrupt. That's worked far better in history than setting up a small group, however high-minded, to run the show.