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Thoughts on Legislative Ethics Reform and Representation

Published online by Cambridge University Press:  02 September 2013

Charlene Wear Simmons*
Affiliation:
California Assembly Select Committee on Ethics

Extract

This article explores the complex and contradictory nature of representative government and its impact on elected officials seeking to balance the public interest with their own private concerns. “Ethics in government” controversies occupy a gray area of public-private overlap which is particularly uncertain today as the press and the public's expectations of acceptable official behavior appear to be changing. Popular pejoratives directed at elected officials include “conflict of interest,” “special interest,” and “undue influence” in contrast to the “public interest.” These terms encompass key representational functions whose precise meaning is unclear.

The uncertainty lies in our inadequate understanding of the nature of representation, that complex interaction between governmental institutions and individual behavior. As Heinz Eulau contends, “… none of the traditional formulations of representation are relevant to the solution of the representational problems which the modern polity faces.” These conceptual limitations hamper our ability to craft “ethics” laws defining appropriate legislative behavior without distorting essential representative functions and responsibilities.

The following discussion explores two contradictory notions of representation: the “trustee” and the “delegate.” Each model inherently favors particular decision-making biases and creates potential conflicts of interest. Important trade-offs are implicit in promoting one model over the other. The analysis also implies that rational and ethical decision-making can result from institutional processes which are designed to check and balance self-interested individual representative behavior.

Type
Research Article
Copyright
Copyright © The American Political Science Association 1991

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References

Notes

1. Sorauf, Frank opines that “… the public now experts politicians to behave better. … A lot of these kinds of things would have passed muster a generation ago, and they're not passing muster now.” Wall Street Journal, January 30, 1990. p. 4.Google Scholar

2. Eulau, Heinz and Walhke, John C., The Politics of Representation. Sage Publications, Beverly Hills, CA., 1978, p. 18.Google Scholar The authors assert that analysts must bridge the gap between individual behavior and institutional macrolevel construction in order to understand legislatures as representative institutions.

3. Senators Cranston, McCain, DeConcini, Glenn, and Riegle, who have been investigated by the U.S. Senate Ethics Committee for their intervention in the regulatory process involving the failed Lincoln Savings and Loan.

4. Assistant U.S. Attorney John Panneton contended in his closing argument at former Senator Carpenter's bribery trial that “Who to meet, who to talk to is an official act.”

“‘Sting’ case heads to jury,” Sacramento Bee. September 13, 1990, pp. A3, A4.

5. Brooks Jackson contends that, “The psychological, even subconscious, effect of money is to chill initiatives that donors don't want. As a practical matter, the outcome is the same as if votes had been sold outright.” Jackson, Brooks, Honest Graft. Alfred A. Knopf, New York, 1988, p. 109.Google Scholar

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7. Two initiatives establishing term limitations for elected California state officials were on the November 1990 ballot. Proposition 140 successfully imposed lifetime term limits of 6 and 8 years; Proposition 131 proposed 12-year term limits.

8. See Proposition 131 on the November 1990 California ballot.

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13. Ibid., Federalist #57.

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19. Cited in Schattschneider, E. E., Two 100 Million Americans In Search of a Government. Dryden Press, Hinsdale, Ill., p. 64.Google Scholar

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24. Robert S. Getz, op. cit., p. 58.

25. Hannah Pitkin defines this concept of representation as “… standing for something absent,” in which political representation “… seems to depend on a descriptive likeness between representatives and those for whom they stand.” She notes that arguments in support of proportional representation and mathematical sampling build on this concept of “accurate resemblance.” (Arguments in favor of affirmative action also rely, to some extent, on this concept of representation). See Hannah Pitkin, op. cit., pp. 10, 11.

26. Assembly Select Committee on Ethics, April 5, 1989 hearing.

27. Proposition 131 on the California November 1990 ballot was defeated.

28. California Statutes of 1990, Chapter 84. “Financial interest” includes earned income and gifts over $250, investments in real property and business entities of over $1,000, or participation as an employee or director of a business entity (Government Code Section 87103).

29. Edmund Burke, cited in Hannah Pitkin, op. cit., p. 175.

30. Alexis de Tocqueville, as quoted in Zetterbaum, Marvin, Tocqueville and the Problem of Democracy. Stanford University Press, Stanford, CA., 1967, p. 32.Google Scholar

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32. Robert Getz, op. cit., p. 2.

33. Schattschneider, E. E., The Semisovereign People. Holt, Rinehart and Winston, New York, 1960, p. 23, 24.Google Scholar

34. The Federalist, op. cit., p. 89.

35. Los Angeles Times, January 3, 1990, pp. A1, A15.

36. Walter Lippman, op. cit., p. 40.

37. See Bachrach, Peter, The Theory of Democratic Elites. Boston: Little, Brown and Company, 1967.Google Scholar

38. California Fair Political Practices Commission, “Hearing to Adopt Regulation 18703.1 (Public Generally: Personal Residence in Small Jurisdiction), California Fair Political Practices Commission, January 9, 1990.

39. Blinderman, Barbara and Diaz, David, “Twice Should be the Charm for Politicians,” Los Angeles Times. February 6, 1990, p. B5.Google Scholar

40. Hannah Pitkin examines the theoretical basis of this argument: “For Rousseau, representation could achieve freedom or selfgovernment only if there could be some guarantee that the representative's will would always coincide with the actual will of the represented. But of course that is impossible.” Hannah Pitkin, op. cit., pp. 9–10.

41. September 15, 1989 floor debate in the Assembly on SCA 32 (later Proposition 112 on the June 1990 California ballot).

42. Brooks Jackson, op. cit., p. 106.

43. See Cain, Bruce and Lowenstein, Daniel, “Can Campaign Finance Reform Create A More Ethical Political Process?” Public Affairs Report. Institute of Government Affairs, University of California, Berkeley, Vol. 31, No. 1, January 1990, p. 3.Google Scholar

44. E. E. Schattschneider, op. cit., p. 31.

45. Fritz, Sara and Houston, Paul, “With the New Accent on Ethics, Most Senators Tread Cautiously,” Los Angeles Times. February 11, 1990, p. A19.Google Scholar

46. The Senate Select Committee on Ethics was established in response to the Bobby Baker case in 1964, while the House Committee on Standards of Official Conduct was created in 1968 after scandals involving Rep. Adam Clayton Powell and others. HR 3660, enacted in late 1989, institutes major procedural changes in the rules of both houses.

47. Los Angeles Times, op. cit.

48. Derived, from Editor and Publisher, 610–89Google Scholar, as cited in Ethics, Easier Said Than Done, Vol. 2, No. 2, p. 6.

49. Jennings, Bruce, “The Institutionalization of Ethics in the U.S. Senate,” The Hastings Center Report. Special Supplement, February 1981, p. 6.Google Scholar

50. Fritsch, Jane, “Ethics Bill: How a Compromise Unraveled,” Los Angeles Times. February 12, 1990, p. B1.Google Scholar

51. Los Angeles Times. January 4, 1990, pp. A3, A27.

52. Hannah Pitkin, op. cit., pp. 21–23.