by Paul Mero

With a part-time Legislature, Utah is prone to difficulties with ethics in at least two ways. First, there always is the possibility that legislators will legislate matters pertaining to their own business interests. Second, and the more serious concern, legislators may create business interests because of their political power.

More often than not, the public debate over government ethics reforms centers on systemic issues. Time is the biggest one. It is both a blessing and a curse. When the Legislature is not in session it cannot do any harm. The more time the Legislature is in session, the expectation will be to do something. Why meet if not to do something? So Utah’s 45-day legislative calendar is a blessing. It’s also a curse.

Because there is so much to do in so little time, legislators must rely on others to help them process all of the information they need to make responsible decisions. But, because they do not appropriate money for full-time staff, they rely on lobbyists for their information. That’s not necessarily bad but you can see how the trouble starts. The trouble isn’t so much that a lobbyist will lie – though that happens regularly if we consider the true meaning and high bar of honesty – the trouble is that lobbyists become de facto staff and often times close friends of legislators. It’s the intimacy of the relationship that is the bigger problem. Lobbyists crave that intimacy. They need to build it for obvious advantage: Reciprocation is a strong human emotion.

Another systemic issue for our part-time Legislature is the imbalance of power. The executive and judicial branches of government are not part time. They continue to work year round and, though the Legislature meets during the interim months, intermittent legislative meetings cannot keep pace with executive and judicial policy makers.

Rarely has the Legislature moved beyond ethics discussions about these systemic issues but, when it has, it typically focuses on conflicts of interest. As it stands, a legislator with a conflict of interest – say a part-time legislator who is a full-time school administrator voting on school funding – must declare any conflict before a vote presenting a conflict. Oddly, the legislator is required to vote nonetheless. She cannot abstain from a vote presenting a conflict of interest. I’ve never heard a rational explanation for that requirement. My guess is that a rule requiring a legislator to abstain from a conflict would expose the regularity at which these conflicts arise and legislators are not too keen on that perception.

Perhaps another faulty reason to prohibit abstentions is to highlight the importance of expertise among legislators. A legislator who is an insurance agent, for instance, should use that expertise to ensure that insurance laws make sense. Of course, that thinking assumes that the Legislature would benefit from having every legislator be an expert in something – as opposed to just having good sense and an ear to the common good. If there is any legislative attribute antithetical to the common good, it is surely a legislator’s perceived expertise.

All of that said, there is no bigger ethical problem to address in our part-time Legislature than what we might call “entrepreneurial corruption.” This sort of corruption is when a legislator makes money from legislation – kind of a legislative “insider trading” situation. This corruption can be explicit as with the current case involving legislators and the Utah Transit Authority or ongoing problem of legislators investing in charter school management companies while writing the laws governing charter school management. It can be less explicit as well such as when legislation is written so that it can only benefit one company.

I think this is the place we ought to start our attempts to reform ethics at the Legislature. We ought to begin focusing on entrepreneurial corruption. We should enforce the ethical violation of legislative insider trading. Announcing conflicts is not enough. Assuming Utah’s Mormon legislators are above corruption is not enough. And self-policing corruption at the Legislature is not enough.

It’s time for real ethics reform. And it’s time to bring the standard of corruption down to the level of the “smell test.” If it smells like corruption, it should be investigated. Voters and taxpayers should not have to wait until the corruption hits full bloom before business relationships are investigated. If a legislator’s career creates conflicts of interest, they should be able to recuse themselves from debate and voting. More so, if a legislator finds himself in a position to make money off of legislation, and takes advantage of that situation, he should be removed from office, at the very least. The first step in a renewed effort for real ethics reform would be to take inventory of every legislator’s conflicts and business dealings and then make that report public.

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