NCSL Podcasts

Following the Rules: Ethics and the Legislature | OAS Episode 191

Episode Summary

On this episode, three experts on lobbying and compliance with ethics rules sat down to discuss how ethics rules have evolved and how attitudes about ethics rules have changed.

Episode Notes

Every state has rules governing interactions among legislators, legislative staff and lobbyists, whether those lobbyists represent business interests, nonprofit groups and others. The rules have evolved over the past few decades and are often being updated. 

On this episode, three experts on lobbying and compliance with ethics rules sat down to discuss how ethics rules have evolved and how attitudes about ethics rules have changed. Our guests are Doug Himes, the House ethics counsel in Tennessee; Mark Quiner, director of NCSL’s Center for Ethics in Government; and Elizabeth Bartz, the CEO and president of State and Federal Communications. 


Episode Transcription

Ed:      Hello and welcome to “Our American States,” a podcast from the National Conference of State Legislatures. This podcast is all about legislatures, the people in them, the policies, process, and politics that shape them. I’m your host Ed Smith. 


DH:     There’s a great line in our House Ethic’s Code that says that representatives should avoid conduct that even appears to violate the trust that the people have placed in them. 


Ed:      That was Doug Himes, the House Ethics Counsel in Tennessee who joined the podcast to discuss ethics in the legislature. We are also joined by Mark Quiner, director of NCSL’s Center for Ethics and Government, and Elizabeth Bartz, the CEO and president of State and Federal Communications.


Every state has rules governing interactions among legislators, legislative staff and lobbyists whether those lobbyists represent business interest, nonprofit groups or others. The rules have evolved over the last few decades and are often being updated. 


            Doug and Mark discussed how ethics rules have changed during their years working in the legislature and how attitudes towards ethics have changed among legislators’ staff and lobbyists. They also discussed the variety of approaches states take to make sure everyone is following the rules. 


Elizabeth explained how companies like hers assist businesses to ensure compliance with different laws in every state and often municipalities as well. She also talked about the value of transparency especially in light of recent reporting about the United States Supreme Court. Here is our discussion starting with Doug and Mark.


Mark, Doug welcome to the podcast.


MQ:    Yeah, it’s great to be here. Thanks, Ed, for organizing this and Doug is always it’s always nice to have you on the panel too so thank you.


DH:     So, thanks Ed. I appreciate having the opportunity to be with you today and Mark.


Ed:      Well nice to sit down with both of you this morning. And our focus today is ethic’s rules and legislatures particularly as they apply to the interactions among legislators, legislative staff and lobbyists. You know that everyone ensures that the rules are followed. Now both of you have had extensive experience with this subject. And I would like to start by having you tell our listeners just a little bit about your background. And Mark why don’t you go first.


MQ:    Well, I worked for the Wyoming legislature for 26 years and I have worked with state legislatures for over 34 years. I actually got into the ethic’s world because I drafted the ethics and civility legislation for Wyoming quite a while ago. The efforts were pushed by a national organization, not local to the states and there had not been an ethics scandal in Wyoming. So, the first version of that law was not well received by the Wyoming residents because they thought it was too strict. So, we eased the travel, food and beverage restrictions. I love working with state legislatures because they truly work for the people and they serve tirelessly and often without much renumeration.


Ed:      Now Doug let me ask you about your role in the Tennessee legislature. Before we started, I told you that when you first came into this role, I read a story about you in the Tennessean and I was struck by how positive everyone was about you. So how has that gone and how did you end up in that role? 


DH:     Well thanks Ed. And that’s very kind of you. I’m fortunate to work with some wonderful people, both legislators and staff. I certainly appreciate them. So, I started in the Tennessee General Assembly as an intern in 1992. And I’m currently serving as the Ethic’s Counsel and the Research Director for the House of Representatives. I’ve served as Counsel to the Ethics Committee all but 11 months since 2003. And in my current role as Ethic’s Council since 2019. And in this role, I hope that I am a resource for our legislators, our staff and the citizens of Tennessee when they have questions about ethics, campaign finance and compliance.


Ed:      Well Doug let me ask you a real fundamental question. Why is ethical behavior important for everyone involved in the legislative process? 


DH:     You know I think it’s a simple answer. To me, it’s about trust and it’s about confidence that that trust instills. You know it’s confidence in the system. You know its confidence in the people that are in the system. There is a great line in our House Ethic’s Code that says that representatives should avoid conduct that even appears to violate the trust the people have placed in them. And I think it is very true. And when I do trainings here in Tennessee and talk to the members and talk to the staffs, I always emphasize while that is in the Ethic’s Code for the representatives, it applies not only to them, but also to the staff members to ensure that we keep the people’s confidence and do everything that we can to act in an ethical way. 


Ed:      Well Mark, I think that Doug points out the complexity of this that the ethics we are talking about apply of course to the lawmakers, the elected people, but it also applies to the legislative staff and to the people who are lobbying the legislature whether those be interests of corporate people or nonprofits that are advocating for their positions. And I wonder with all of that in mind, howe do you define ethics as it occurs and applies in the legislative side.


MQ:    Well, I think to build off what Doug just said, I would say that in a word, ethics is doing the right thing for the right reason and it all stems from your source of values. What’s important to you and what makes you tick and why do you do what you do. To me that’s ethics in a nutshell. 


Ed:      Mark let me stay with you for a minute. As we know in almost any policy area, every state does things their own way. It’s almost impossible to find one state doing something exactly the same as another state. And I wonder if that is true of course with legislatures when it comes to ethics. And if you could talk about sort of a basic timeline about how ethic rules have evolved in the range of approach states take. I think as I mentioned to you, when I was a kid, my father was a lobbyist and we are talking the late ’50s and 1960s. For some of our audience, that will seem like ancient history, but things were to put it mildly pretty loose back then and I wonder if you can talk about how that’s changed a little bit. 


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MQ:    Absolutely. That’s a good question. You know nowadays I think every state has some version of an ethic’s law and just a few decades ago that was not the case. Many states did not have anything on the books. They might have had informal rules and regulations or some sort of administrative procedure. You know I’m often asked which state has the best ethic’s law. I simply believe that each state’s legislature is different and each state legislature must do what works for them. Ethic’s laws and rules have evolved through the years, but basically, they’ve stayed somewhat the same. And each state, again, has to do what works for them. Ethic’s laws and rules are meant to be a guideline. They are formal and in place. I like to think of ethics as a big E versus the little E. And the little E are the formal laws, rules, regulations that are written down, but they can’t cover every instance, situation and behavior. Rather I think each legislator must decide why they wish to comply with the formal laws, the little E and do the right thing. This is where the big E comes into play. What are your internal core values that help you determine your why. Why do you want to be ethical. Is it just for mere show to keep you out of trouble or is it because you want to do the right thing for the right reason. When you do that, I think that’s the definition of character. What you do when no one is watching. Reputation on the other hand is what you do when someone is watching. When character and reputation match that’s an authentic, ethical way of living.


Ed:      And Doug let me ask you specifically just about Tennessee. How have the ethic’s rules evolved in your state?


DH:     Thanks Ed. You know I think Mark was really good about pointing out that it wasn’t that long ago before we had a whole lot of standards, rules or statutes. From the legislative side, the House Ethics Committee came into being in 1990. From a statutory side, over the course form 1980 in Tennessee, we first adopted the Campaign Financial Disclosure Act. In 95, the Campaign Contribution Limits Act. And in 2006, the Comprehensive Government Ethics Reform Act which created our state ethics commission. And since then, just since 2021, probably about half a dozen bills that have made changes to these to this set of statutory guidance. Some significant that affect legislators, affect legislative staff, executive branch staff, lobbyists and citizens as it pertains to campaign finance and ethics.


Ed:      Well, that’s great. I think a lot of times people don’t understand the amount of efforts states have put in on this and how there’s not just one rule to things. There’s iterations of them. Now those of us who work in the legislative space know that lobbyists come in all shapes and sizes. There are lots of nonprofit groups that come and advocate for their point of view at the legislature and there are business interests come as well. Despite the negative connotation the word often had, this is a core part of how our government works. And I wonder Doug with that in mind, can you talk about some actual ethical issues that have come up during your tenure and how they were dealt with. I think sometimes a story about these things is a better way for people to understand it.


DH:     It’s a really good question Ed. And you know I think the public perception that lobbyists and employers of lobbyists have is sometimes unfair both to the lobbyists and their employers. What I have found not only in Tennessee but from people I’ve met around the country is that lobbyists and employers of lobbyists are good folks who want to do the right thing and comply with the rules and statutes that are out there for them to follow. I think that’s a goal that everyone has in mind in helping keep that confidence level and the process. As a general rule in Tennessee, lobbyists and employers of lobbyists can’t provide gifts to legislators or legislative staff. And we’ve had a few examples that I could share. I think this will be a repeat for Mark, but as we came out of the pandemic, one of the exceptions we have to our gift rule is for instate events and receptions. And during the pandemic that was pretty much all eliminated. As we came out some of the employee’s lobbyists were creative in how they wanted to try to get people together. Jack Daniels decided they would have a virtual reception. It was a great idea. They communicated with the state’s Ethics Commission and talked about it. Had approval for it. Sent out invitations. The day of the event came and the headline was lawmakers enjoy a bottle of Jack at virtual reception. So, there was just a bit of a miscommunication about what would be included in the virtual reception bag that was provided for the folks to participate. And that was one of those things that we worked through and we had some new guidance from our state’s Ethics Commission about what was appropriate in terms of what could be in a basically a virtual reception bag. We passed the pandemic stage thankfully and now we are back more normal. 


            And I think another example could be the exception we have to our gift ban for out of state conferences like NCSL’s Legislative Summit coming up in Indianapolis. At those events, there are often state nights. And the way our code is written is that there’s an exception for state nights or “other events.”  As we get into this time of year, some of the folks that represent employers, some of the lobbyists have asked and I’ve worked with them and I’ve worked with the Ethics Commission to make sure that those other events are legitimate events that everybody plays by the same rules. That they send out invitations. That it’s a defined group of people. And it’s not a one on one or a casual meeting, but an actual event. And I think that communication process has helped us and it helps us make sure we are addressing issues that the public sees as something that we need to make sure are handled in an ethical way.


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Ed:      Well and I suspect that a lot of the readers who saw those headlines didn’t realize all the effort that had gone into trying to make sure that the event was done in an appropriate fashion. And that’s probably not good for public perception. 


DH:     Just to follow up with you there Ed you know Brown-Forman, who is the parent of Jack Daniels, is a great corporate citizen and they did a lot doing the pandemic including providing hand sanitizer that they made at their distilleries, both to public departments and emergency departments in Tennessee and in Kentucky. And they did. They did everything right. But even if you do everything right because its ethics, it’s not always easy to know what that answer is. And I think Mark hit on this earlier a lot of times you know the I’ll end a conversation with you know somebody asks can I do this and I say well you could do it but should you do it. And I think that’s what we are trying to get to. We’re trying to get people to think about as I said before to not even violate not even appear to violate the trust that the people have placed in them. 


Ed:      Well Mark let me come back to you on this because as I mentioned there were the days back in the ’50s and the ’60s and probably later than that when passing someone an envelope with $10,000 in cash in it was probably not unusual. It was certainly unethical, but it was not unusual. Obviously from the discussion we’re having, we are way past those days, but I wonder in your career and you’ve been around this world for a long time how do you see attitudes change. We talked about how the rules have changed. But do people stop and think more do you think now than they ever would have in the past about whether I should do this as opposed to can I do this is that what you are seeing.


MQ:    Thanks Ed. That’s a good question. I like what Doug said about the examples and you know I was recently asked to testify in front of an ethics committee in a state and I’ll never forget prior to my testimony, the ethics commission executive director testified. And the committee wanted to know you know well what’s going on. Is there corruption out there, etc. and I’ll ever forget what he said. He said you know 97% of the complaints that we get of the violations of the ethics code by lobbyists are simply reporting errors. They are not you know sinister like you said Ed, slipping somebody an envelope with a lot of cash in it. They are simply reporting errors by not knowing the requirements of lobbyists to report. So, I would say that over the years I think there’s been tremendous progress made in the area of lobbying and ethics. I’ve had the opportunity to address lobbying groups and I’ve always enjoyed doing so. And did you know that there is a code of ethics that has been adopted by the National Institute for Lobbying and Ethics. It’s a short code and I highly recommend anyone interested in this area to read that. I certainly recommend and strongly do so that all lobbyists read that code of ethics that the National Institute has adopted. Anyway, it talks about the importance of compliance with applicable laws, rules and regs. What I call the little E. But it also covers topics like honesty, integrity, professionalism, conflicts of interest, due diligence, confidentiality and the like. That’s the biggie. I like it because it’s very similar to most ethics laws that legislators and staff must follow. I have found a recent heightened awareness in the importance of ethics from both sides of the legislative coin legislatures and lobbyists alike. 


Ed:      Well Mark we will be sure to put the link to that code in the show notes so people can check that out. And Doug kind of a similar question. What have you seen?  I mean I know you’ve talked to people around the country about this. What have you seen both in Tennessee and around the country in terms of how legislators and lobbyists what their attitudes are about this.


DH:     You know I think what folks are looking for now or where people are headed is more disclosure, more transparency. And I think you balance those with more training and more education because I think that’s an important piece of it. I think that both the Tennessee Ethics Commission and myself try to do our best to educate our clients whether that be the legislators, the legislative staff, the lobbyists, the employers of lobbyists and the citizens about the laws as they change and the rules as they change. So that’s a big part of it is the training and education. 1990 was the first time that lobbyists in Tennessee registered and that registration continues. The lobbyists are required to go and have annual training and they are prohibited from contributing to campaigns. On the employer lobbyist side, you know for the years we’ve added biannual reports where lobbyists compensation is reported in ranges and at expenditures to influence legislation is also reported in ranges. We’ve also more recently enhanced interim reporting for PAC’s many employers of lobbyists have and also require all expenditures to be recorded instead of allowing unitemized expenditures. That’s a recent change as well. And all of that requires from the state Ethnic Commissions side and from my position to educate and inform people about where to look, what to disclose and where to look and find those disclosures. 


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Ed:      I’d have to say our most high-profile ethics conversation in the country right now is around the Supreme Court. Transparency does seem to be a big, big part of that and that seems to have provoked a great deal of, maybe outrage is too strong of a word, but certainly a lot of concern from it. As we get ready to wrap up here Mark, I wonder what final thoughts you might want to share with legislators and also because I always shamelessly promote NCSL’s Legislative Summit if you’d like to talk just a little bit about the lobbyist panel that you are going to do there in Indianapolis in August.


MQ:    Sure. Well, I’ll take the first the last question first if that’s okay with you guys. We’re doing a panel discussion this year at Summit and as Doug said, it’s in Indianapolis. On Wednesday, August 16, 1:45 to 3 p.m. We will have a panelist of lobbyists at this time. I will moderate it. Anyway, it’s called the “Ethical Dos and Don’ts From a Lobbyist Perspective.”And I think it’s important to get their perspective because they are very involved in the legislative process as you all both well know. And Doug is on the firing line of this process every day. The description of our panel is what ethical challenges do legislators and staff face today and how does lobbying factor in. Come listen to a panel of experts with a collective 50 years of lobbying experience as they shed light on the fourth branch of government. Learn more about the best ways to handle potential ethical dilemmas. So, I’m looking forward to that discussion. I think it will be very valuable to all attendees at the Summit. 


            To answer your first question Ed, I first of all want to thank you for putting this together and thank you Doug for your valuable input. As I said, you are on the frontline of this enforcement every day. And I think I would like to remind everyone that we are all in this together. The value of legislation comes from our state legislatures and it’s only as valuable as the process by which those laws are enacted. If legislation is conducted in a fair, open and ethical manner then the public has faith in the legislative institution. We must all work to that end legislators, legislative staff, lobbyists, constituents and all citizens since we are all impacted by the laws that are enacted. And again, I think it is so important for everyone to follow the ethic’s laws, rules and regulations the little E and to do so for the right reasons out of a sense of values based living the big E. 


            Thanks again for the opportunity to participate. It’s an honor to work for NCSL and for the state legislatures. And I also want to thank the foundation who funds my office and makes this all possible. 


Ed:      Well, thank you Mark. And Doug, what parting thoughts would you have for folks in our audience?


DH:     Well thanks Ed. I guess I’ll echo Mark yet again and thank you for having us on. Thank Mark for being on this podcast with me. And thank NCSL for hosting in general. I guess I would in one word say nachos. And you think why am I saying nachos. I’ll end with one last story. It was last week, I got an email from one of our Tennessee lobbyists who wrote to me and said that he had a well he said a silly question and it was about a plate of nachos and in an interaction that he had recently where a legislator came up to him after he had already been at the restaurant with his plate of nachos. The question was did we do the right thing and who paid for the nachos. And I’ll tell you the answer here. They did do the right thing and I was impressed that they wanted both of them to make sure that they had. And I think that’s what we are going for. And we want people ah citizens to have confidence and trust in the system that we have in place. And I think the important thing there is whether you are a legislator or a legislative staffer, a lobbyist, a citizen getting to know who in your state is in charge of ethics and there’s maybe multiple like here in Tennessee where we have an Ethics Commission and you have me as the House sort of ethics officer in my role as ethics council and there’s others. But we are here to help. We don’t want to get anybody, but we want everybody to understand what there is out there and make good decisions and I think that’s beneficial for democracy.


Ed:      Well, I do think it is so important especially for constituents to feel as though the process is fair. They might not be happy with the policy that’s passed or the bill that has passed, but as long as they don’t feel it was done behind closed doors, I think there is a great deal more confidence in the legislature. I want to thank both of you for sharing your extensive expertise in this. And I know that this is not a topic that we really talk about very much so I think it’s a really great opportunity to jump into it and of course we encourage everyone to go to Indianapolis and attend Mark’s session and hear what the lobbyists have to say. Gentlemen, thank you both very much. I’ll be right back after this short break with Elizabeth Bartz from State and Federal Communications. 


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Ed:      Elizabeth thanks for coming on the podcast.


EB:      Well, thank you Ed for inviting me to discuss these important issues. 


Ed:      Well, I really welcome this opportunity to talk because you have such a wealth of experience in the world of lobbying and compliance with ethic’s rules. And I wonder if you could just start with a little bit of your background and how you came to find State and Federal Communications.


EB:      Well, this all started way back you know before Al Gore created the internet. I had graduated with a BA in Journalism and a MA in Political Science from Kent State University. Flashes forever. Actually, the company in its earliest stages was a department of my employer at the time State and Federal Associates. I was given the opportunity to purchase the department and so began State and Federal Communications. The company has grown from 1, me, to now 43 with offices in Akron, Ohio, and Washington, D.C. 


Ed:      Well, that’s quite a bit of growth over that time and given how long you’ve been in this business, I wonder just what are the most significant changes you’ve seen when it comes to the world of ethics and compliance.


EB:      Thirty years to be exact Ed. Significant changes. Year after year the amount of scrutiny that companies receive with all of their government’s relations work, lobbying, political contributions, procurement activities and the emphasis that is required to stay compliant. This isn’t getting easier. 


Ed:      Well, I think I mentioned in our earlier conversation any my conversation with Mark and Doug before our conversation that I grew up in this world. My father was a lobbyist for a Fortune 500 company. He worked in DC most of the time and certainly it was a different world then. Kind of the wild, wild west back in believe it or not the ’50s and ’60s that I’m referencing here but considering all that change. All that change that came before you even got in this game and then the change in the last 30 years. At this point, do you think particular at the state level state efforts in ethic rules are adequate?


EB:      Well Ed it differs from state to state. We like that. But all states in general are making efforts to position ethics rules to establish confidence in the process. So, I guess the short answer is yes.


Ed:      What do you think is the single most important step private sector organizations can take to ensure that it’s interactions with states are ethical?


EB:      Well, that’s an easy question. They should hire state and federal communications. Did you expect a different answer?Realistically though they cannot ignore compliance regulations and rules at the state and federal levels.


Ed:      And the truth is they probably really do need some help whether it’s your organization or another one because these are complicated in places. As you say every state is different which is true probably across most public policy areas. It certainly seems as though guidance is true. Do a lot of private sector organizations look for outside help or they create mechanisms within their own organizations to handle this.


EB:      Well, I think a lot of people do try to do it internally, but larger companies have issues doing that because their people are all over the country. This is our primary responsibility to our clients at state and federal communications keeping them compliant. And a lot of people are now outsourcing this to organizations like ours that can help them to stay on top of what’s going on in the states and federal government and the municipalities who now want to make sure that they are a little different than their state counterparts. 


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Ed:      So, it’s gotten more complicated than with similar players coming in and looking to ensure this.


EB:      It is definitely it is definitely difficult for people to do so we try to help them. We have two services. We have an online guidebook that people can subscribe to companies subscribe to, but our primary business involves assisting corporations and trade associations who outsource their overall government compliance to us. We know when the reports are due.


Ed:      I feel like a broken record on this one because I have asked this question so many times in the last couple of years, but to what degree has this whole system in terms of how lobbyists interact with legislators, legislative staff, how did the pandemic affect that?  It seems to have affected everything else. 


EB:      Well, it definitely did. Unfortunately, it involved return on investment. Companies were financially lean during the pandemic. They wanted to cut back expenditures on ensuring that they maintained proper ethical practices, but knew they still needed to stay compliant. So, they became more critical on how they spent their government relations dollars. And sometimes not in a wise way. 


Ed:      So, let me ask you this. I think that the 800-pound gorilla of ethics lately has been the discussion about the Supreme Court and of course without drawing any conclusion about the activity of the justices certainly a lot of people for the first time in a long time have seen big headlines on news sites and whatnot about compliance by the Court particularly around some financial issues. And I wonder one, what your thoughts are about all of that and if there are new ethics rules drawn up for the Court, how do you think that might affect states and how they handle this issue?


EB:      Well, this is a political issue which almost demands different responses from either side. Our company takes no position on this matter from a business perspective. We stay neutral to protect all of our clients equally. Personally though, ethics guidelines have always been assumed to be at the highest standards with the Courts. If these standards are becoming weak then adding guidelines are necessary for all judges on any bench ensuring ethical guidelines are maintained is vitally important and starts at the top and migrates through the states.


Ed:      Do you see this issue with the court provoking conversation in the states. I know that you’ve talk to people all across the country all the time. Has it come up in conversation? Are they hearing from their constituents? 


EB:      It does. People are talking about it. I was just in Brussels at a study group that was put on by the Public Affairs Council and we were talking about it there. People think it is something that needs to be addressed and somebody needs to govern the U.S. Supreme Court now. I’m not sure who that is.


Ed:      They don’t seem to be too sure about who it is or whether anybody should either from some of the public statements from the justices. Elizabeth, I wonder as we get ready to wrap up, what else would you like to share?


EB:      I think it’s important to know that a lot of lobbyists you know they get down they get blasted a lot and we work with companies that want to stay compliant and want to be true to what the state is requiring that needs to be reported. We are very transparent in the work that we do for our companies. We provide the states with the information that they need. We have an excellent rapport with the people in the states and you know I just think that as people understand what is going on in lobbying and ethics. Campaign finances is a big year right now. States are dealing with campaign contribution limits for next year. And here we have a couple of elections coming up. Whether we wanted it or not. I just think we are all trying to do the right thing.


Ed:      Well, I think that’s a great point to end on and I thank you so much for sharing your really vast experience in this area because its one I think a lot of people don’t know that much about. Thank you so much Elizabeth.


EB:      Thank you Ed. I really enjoyed this.


Ed:      I’ve been speaking with Doug Himes, Mark Quiner and Elizabeth Bartz about ethics rules and compliance in states legislatures. Thanks for listening.


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You can check out all the podcasts from the National Conference of State Legislatures by searching for NCSL podcasts wherever you get your podcasts. Tim Storey, NCSL’s CEO, hosts “Legislatures:  The Inside Storey” where he focuses on leadership and legislatures. The “Our American States” podcast dives into some of the most challenging public policy issues facing legislators. On “Across the Aisle” host Kelley Griffin tells stories of bipartisanship. Also check out our special series “Building Democracy” on the history of legislatures.