Commentary: Understanding the Limited Authority of Ethics Commissions

• Published date: 01 January 2015
• Date: 01 January 2015
• DOI: http://doi.org/10.1111/puar.12316

Commentary

Bruce A. Androphy is an ethics prac-

titioner with more than 25 years of service

who currently directs an ethics program at

an agency of the federal government.

E-mail: bandrophy@gmail.com

Understanding the Limited Authority of Ethics Commissions 111

Public Administration Review,

Vol. 75, Iss. 1, pp. 111–112. © 2014 by

The American Society for Public Administration.

DOI: 10.1111/puar.12316.

Bruce A. Androphy

For the practitioner, Jonathan Rauh’s very com-

pelling article, “Predicting Political Inf‌l uence

on State Ethics Commissions: Of Course We

Are Ethical—Nudge Nudge, Wink Wink,” provides

perspective on and understanding of the nature of

ethics commissions and their inherent limitations. It

also reveals to a larger audience some uncomfortable

truths that many of us in the world of government

ethics already know: state ethics commissions are

primary compliance organizations that come into

existence after scandals to appease public sentiment.

According to Rauh, their mandates “generally are not

well def‌i ned and usually target popular notions of cor-

ruption, such as quid pro quo, while failing to address

more nuanced indicators of corruption, such as strong

f‌i nancial disclosure requirements for elected of‌f‌i cials.”

Rauh is on point when he notes that, generally, public

attention to ethics commissions quickly fades once

the scandal subsides, thus reducing the commission’s

mission and ef‌f ectiveness.

Rauh also correctly identif‌i es the paradox that com-

missions are created by the very legislatures or execu-

tive branches that they are asked to oversee.  us,

there is an incentive for the legislative body to take

steps to ensure that the ethics commission is not too

successful or threatening to the body that created it.

Rauh identif‌i es such steps as appointing commission-

ers who have strong ties to the political establishment

or are otherwise nonthreatening, providing the com-

mission with limited investigative authority, and pro-

viding insuf‌f‌i cient funding or personnel. He depicts

most ethics commissions as “a palliative for public

distrust” and notes that elected of‌f‌i cials are more likely

to create and empower ethics commissions when they

do not perceive them as a serious threat.

Rauh does not limit himself to the restraining power

of legislatures on the authority of ethics commissions.

Certainly, the recent example of Governor Andrew

Cuomo of New York interfering with his state’s ethics

authority reinforces Rauh’s argument that ethics com-

missions cannot bite the hands that feed them.

Much of the article addresses the authority and proc-

ess for appointing ethics commissioners, which varies

from state to state in terms of which body makes

appointments and which gets to conf‌i rm. Against this

background, Rauh proposes several theories on pre-

dicting political inf‌l uence on state ethics commissions.

One of those is the locus of the appointment power.

Rauh argues that where there is greater centralization

of appointment (limited oversight of the appoint-

ment), those making the appointments will have more

political inf‌l uence over their appointees. He also notes

that the power to remove a commissioner may also

be a “potent weapon” to keep ethics commissioners

under control.

Rauh proposes several other somewhat speculative

theories on measuring the ef‌f ectiveness of ethics com-

missions. For example, he uses the salary of the leg-

islature compared with the average salary in the state

to determine whether the legislator is incurring a cost

by his or her service. Studies have shown that poorer

citizens who run for of‌f‌i ce have more incentive to

behave honestly because they have a higher incentive

to keep their positions, while wealthier legislators have

the f‌i nancial ability to absorb the costs of any f‌i nes.

Another barometer for assessing the independence and

ef‌f ectiveness of an ethics commission is the prevalence

of corruption convictions.  e premise is that where

there are convictions, there is a strong and independ-

ent ethics commission. But Rauh correctly notes that

it is dif‌f‌i cult to draw such a conclusion. For example,

most corruption convictions stem from federal investi-

gations. In fact, the intervention of a federal author-

ity may be more indicative of an inef‌f ective ethics

commission.

Rauh looks at other variables to assess ef‌f ectiveness.

For example, he proposes considering the budget of

an ethics commission against the number of indi-

viduals under its jurisdiction, as well at the budget

compared to the number of activities tasked to the

commission. He also suggests that more professional

Understanding the Limited Authority of Ethics Commissions