Wisconsin Wars: The Democrats’ Unethical Ethics Complaint

Wisconsin Democrats have filed an ethics complaint against Governor Scott Walker.

The complaint, and the filing of it, are unethical. Really, really, really unethical. Here’s why.

In any hard-fought political battle, the opposing sides believe sincerely that their cause is just, and that the other side is mistaken, misguided, and wrong. Often, the subject under debate is one that involves a balancing of interests and ideological divisions. Indeed, one party might think the other party’s position is unethical, and vice-versa. So might you or I. A classic example is the issue of fair taxation policy, destined to be battled over again and  again until the seas boil and the mountains fall. Does fair mean the people should be able to keep as much of the money they earn as possible? Or does fair mean that taxes should be used to transfer money from the richest to the poorest? You may passionately believe that one of those positions is unethical, and you may be right, but right or wrong, state ethics statutes must not and should not be used as political weapons to make that case, either explicitly or indirectly, by asserting that the elected official who argues for the position is unethical, in an effort to turn public opinion.

This has to be emphasized: government ethics rules are not intended for this purpose. They are intended to prohibit specific varieties of corruption endemic to elected officers, and to engender the public trust by identifying practices that have “the appearance of impropriety.” While state ethics statutes and regulations may, like private ethics codes, include general statements that those governed by them should be honest, have integrity, avoid conflicts and be generally virtuous, this does not mean that every obfuscation and attempt to distort facts warrants a complaint. All elected officials lie; politics involves lying. I’m not convinced that it has to, but in the matters of candor and communication, politics, as practiced for thousands of years, is an inherently unethical occupation. Those who can claim to be ethical politicians lie less than unethical ones, and in less offensive ways, but if every lie is going to be the justification for an ethics investigation, government will ground to a halt.

When ethics statutes are used for political purposes, rather than to identify—in the spirit of non-partisanship, respect for government and concern for the public interest—untrustworthy officials regardless of party affiliation, several undesirable effects result, all of them detrimental to the cause of ethics and democracy.

1. The ethics rules become seen, by both parties, as weapons to be feared rather than  guidelines to be followed. This often results in the parties jointly creating impediments to enforcement of the rules, as has long been the situation in both Houses of the U.S. Congress.

2. When the ethics  rules are being used as political weapons rather than as a legitimate means of identifying corrupt conduct, the politician who is accused of genuine ethics violations will always claim, and many of his or her supporters will believe, that the charges against them are “politically motivated.” Exhibit A: Rep. Charles Rangel, who maintained this defense throughout his ethics ordeal, despite his clear, serious and  intolerable violations.

3. It confuses the public, who are simply given more reasons, as if they didn’t have enough already, to conclude that politics and government are a big cesspools and that there is nobody who is trustworthy swimming in the filth. Public cynicism allows the ethics of government to deteriorate further, because the public’s expectations keep falling.

4. It wastes time and money. To some extent, this is the intention behind abusing the ethics process: harassment. Alaska attempted to seek good government by allowing citizens to file ethics complaints against elected officials, and it resulted in an orchestrated effort by the opponents of Gov. Sarah Palin to file as many complaints against her as possible, taking her away from her duties, wasting her personal resources, harming her reputation, and ultimately driving her from office. There was essentially one valid ethics matter that Palin needed to  account for, but she was forced to deal with almost thirty.

Using ethics complaints this way, of course, is also unfair and dishonest.

In the case of the Wisconsin complaint, there is the additional matter of shamelessness. Whatever ethical transgressions have been committed by both sides of the dispute over public employee unions, and there have been too many to list, the single most unforgivable ethical breach has been the Democratic legislators’ unconscionable tactic of leaving the state to avoid doing their duty by participating in the legislative process. The utter gall required for a political party that has engaged in such an indefensible tactic to accuse anyone else of ethics violations reaches record-setting proportions.

That would be true even if the complaint itself had any integrity or validity, but it doesn’t.

It begins with an advocate’s version of the events surrounding the Madison protests and the legislators’ walk-out. These are not, needless to say, factually stated; they are chock-full of value judgments and characterizations with no force in the ethics matter, designed for press consumption, and thus an abuse of the process. By item 10, the complaint begins attacking David Koch, one of two wealthy brothers and business partners who have chosen to exercise their rights to participate in the political process. The description in the document is deceitful in several ways, not the least of which is that it suggests that the brothers’ giving a million dollars to the Republican Governors Association is a) sinister and b) relevant.

Then comes the crux of the complaint, and it is based entirely on blogger Ian Murphy’s fake phone call to Gov. Walker, in which he pretended to be David Koch and attempted to goad Walker into making embarrassing or incriminating comments as Murphy taped the call. basing an ethics complaint on something as sleazy as Murphy’s juvenile prank is expediency and cynicism at their worst. The Democratic Party is associating itself with an unethical stunt that was specifically condemned by the Society of Professional Journalists, in an act that would have been illegal in many states. This would be despicable even if there was actually anything on the tape that amounted to a genuine ethics violation by Walker, but there wasn’t, despite the furious spinning by the author of the complaint, Margaret Brick.

In item 12, she says that Walker “suggested” to the fake Koch that he run ads supporting Walker’s efforts in other states. Walker doesn’t do this, however; it takes a wild leap of logic to interpret his remarks this way. Item 14 says that Walker violated the law by “requesting a political contribution” while in his office. There is no plain reading of his words that would support such a contention. Absurdly, in Item 16, Brick argues that when Walker says that he has the State Attorney General “looking into” ways to get the legislators back, he is “misusing” a state employee for “primarily political purposes.” Having the Attorney General research whether the state has legal remedies when elected state legislators refuse to do their jobs and paralyze the government is undeniably a legitimate state concern, and even if it was not, telling a caller that you are having a state lawyer “look into” a matter couldn’t possibly constitute a violation of any kind. In item 17, the complaint alleges that Walker discussed options with his cabinet that constitute a criminal conspiracy, even though the options discussed were rejected. Actually, Walker didn’t even say that, but the suggestion that a governor taking suggestions from his cabinet could be judged conspiracy is lunacy.

In item 19, Brick says that the Governor’s “threat” to lay off workers to “ratchet up the pressure” on the protesting unions is a violation of fair labor practices. This is using ethics rules to mischaracterize politics, but more importantly, what Walker says to Koch about what he might do does not constitute a threat to anyone. Ridiculous.

Finally, the complaint closes with its most trumped-up accusation in a document containing nothing but trumped-up accusations. The fake Koch ends the conversation by telling Walker that after he “crushes the bastards” he’ll fly the Governor “to Cali” and show him “a good time.” Walker says, “All right, that would be outstanding” and the call ends. That is nothing. It isn’t a deal, an offer and acceptance, a contract, a bribe—it…is…nothing. The fake Koch’s comment isn’t a solid invitation ( “To Cali”? When? Where? Who? How long?), and would not have been even if the real Koch said it. For his part, Walker’s obviously non-committal “All right, that would be outstanding” is not an agreement, a handshake, a quid pro quo or a smoking gun that would suggest that Walker is doing anything but being polite. “All right” and “that would be outstanding” are standard rhetorical banter, like “awesome” and “Great!” I would be shocked if such language ever has been interpreted by any body, court or administrative process as indicating genuine assent, anywhere, for any purpose, since the beginning of time. Yes, this accusation is that unfair.

What we have with the ethics complaint against Governor Walker, then, is an abuse of a Wisconsin statute for political purposes, that undermines the ethics process and public trust, using the dubious fruits of an unethical deception, which are then misrepresented and distorted to produce false accusations…on behalf of a party whose members refused to meet their legislative obligations in defiance of law, duty, and democracy.

A final note: This was not an analysis that relates in any way to my assessment of the underlying political dispute, and I give notice here that I will not appreciate comments that suggest otherwise. I would have exactly the same assessment of a similarly invalid ethics complaint filed by any party in any jurisdiction against any elected official.

9 thoughts on “Wisconsin Wars: The Democrats’ Unethical Ethics Complaint

  1. I read the complaint, which prompted me to read the transcript of the call though, that wasn’t attached and I had to go find it.

    Your analysis of the ethics complaint seems to me to be spot on.

  2. While I don’t believe the final complaint is valid, you seem to be a bit glib with quid pro quo agreements. I don’t think you need to have fleshed out all the details to hit the threshhold of impropriety.

    Similarly, some of the other rhetoric is bad for your argument. Bringing up the legality of 1 party taping is no better than complaining about the Koch donation. Using “no plain reading” to make a possibly questionable statement seem less questionable is also below you. We don’t analyze conversations like second graders diagramming sentences, and we understand that there is often much connotation that isn’t spelled out, especially when deals are not on the up and up.

    Overall, I agree that the report is a political attack, not an ethical complaint, and will all the problems that entails, but I think you let (justified) emotion get the better of you a couple times.

    • To some extent, I plead the limitations of the form. If I were writing a 3000 forward piece for the Times, I’d do all that and more. Once a blog post gets over about 800 words, it is of limited appeal, and frankly, this compliant is a piece of junk. I don’t believe the author believes any of her accusations. It’s worth some of my time, but not days.

      I bring up the legality of one party tapings because it’s relevant to the issue of ethics—it is unethical enough that many states have made it illegal. I don’t see it as similar to complaining about the Koch donation at all. Would “no way on God’s green earth did Walker say that” be better for #14? It just isn’t there. “No plain reading” is a nice way of saying that the author is just making things up. I approached that section trying to come up with a way anyone could claim Walker was requesting a contribution. I can’t see it. I can’t even see how someone who was trying to make up something could get a foothold.

      I’m not the least bit emotional about it—it doesn’t effect me, or anything, really—in the least. It’s just an unusually egregious example of unethical politics.

      • I nominate “I plead the limitations of the form” and “it wasn’t worth my time to do right” for your list of unethical rationalizations.

        I think mentioning the illegality of wiretapping in some places gave off unfair connotations. You could have claimed it was unethical to do one party taping on a hit piece without making it seem like the guy ought to be in jail. I wouldn’t use this as a textbook example of poisoning the well, but I think it qualifies.

        Moving on, I think if you grant #12 as reasonable (which I am not doing), #14 would follow, but that would likely depend on various caselaw, and I’m not informed enough to be willing to debate it. It seems there is a possible reading to fit the offense, though not a likely one. I had more of a problem with the way you used the phrase “plain reading” then what you were applying it to. I think you can use “plain reading” to show meaning is there, but not to show that a meaning is not there.

        As a reader, it seems that your writing about particularly egregious examples of unethical behavior has a tendency to push the bounds of legitimate argument more than your writing on more run of the mill unethical behavior. Maybe I just pay more attention to your writing when the behavior is more horrendous.

        • Well, you’re just full of beans on this. It’s not a rationalization: I’m not writing briefs here, or intending to; I’m giving a sense of what’s going on. The media just sets out a long document, linked to a transcript, and says there’s been an ethics complaint filed, which leads a disturbing number of people to assume something has been done unethically. I laid out plenty for anyone who cares or wants to be fair to determine that this just isn’t so.

          If I had days, if this was the only ethical issue, if I didn’t have to earn a living, and if I thought it was worth the time, I would go through the complaint and link it to the transcript line by line. I don’t, and it isn’t necessary anyway. The point is made.

          Arguing for the sake of arguing is swell, if there’s any purpose to it. Nobody else that I’ve found has bothered to examine the complaint at all; I’m not going to accept criticism for not dong it in enough exquisite detail to please you when it isn’t even a close call. I have to practice triage here; I have a mission, and spending exorbitant amounts of time on any one topic interferes with it.

          If you can make an argument that anything Walker says in the transcript constitutes a plausible ethics violation, go ahead and make it. You’ll look foolish. It isn’t there. I don’t see why I have to spend more time explaining that it isn’t there.

          • And you doubled down on it. A “My bad. I wrote this quickly and there were some simplifications and less than perfect word choices, but my point is still valid” solves the problem. A “it’s not my fault, it’s the forum” is something you should be complaining about as a non-apology and rationalization.

            If you’re going to write a blog about critiquing ethics, making sure you don’t commit ethical violations in the process seems like a must. Yes it’s just a blog, but I don’t think that’s an excuse for being overly glib in making your points. You may disagree, but it’s definitely no excuse for being defensive when this is pointed out.

            I am in no way defending this document. My cursory reading of it says that it’s not even worth a full post. An open ended question of spot the flaws might have served this one well.

            • I’ll quadruple down. I am happy with my word choice, and again, if my point wasn’t made sufficiently, counter it. And I didn’t say I wrote it quickly—it took several hours. I said that I didn’t have days to write it, and criticizing the post for that is unreasonable. That’s not a rationalization or an excuse. Blogging by its nature is limited in time and scope.

              I liken your complaint to the comments I get that say, “why did you write about x when y is so much more important?” The answer is either a) I already have written about it, you just didn’t look or b) because I felt like writing about x, and I don’t have to write about everything, because if I did, I wouldn’t have time to write about anything.

              • You think the word choice is good. I think the word choice overstates the case in multiple places. I guess I am defending the wisconsing democrats, but not much. It’s like a lawyer admitting that their client committed armed robbery, kidnapping, and multiple homicide, but strenuously denying that he was trespassing at the time.

                It doesn’t really effect the horribleness, but I think some of the specific verbiage is being abused, and I’d hate for an otherwise innocent to be abused that way.

                I don’t see the comparison to the people complaining what you are writing about. I disagree with the editorial meaning of this post, not the editorial discretion of it.

  3. Personally, I think that was a very fair and even-handed analysis, Jack. Inevitably, people would think about it in terms of comparison to the NPR sting. Governor Walker didn’t play up to his alleged constituent/donor or offer intemperate remarks. He merely listened and responded politely, but non-committally when the caller seemed to go off-track. This is what y0u usually do when meeting someone for the first time in a business/political context. It’s called “personal evaluation”. When a wealthy donor calls, you listen! When he starts making leading remarks or others that seem to be overly familiar or might possibly smack of bribery, you have to assume its either a set-up or misplaced enthusiasm by a political newcomer who’s excited at talking to his governor. Unlike the NPR incident, Governor Walker was speaking on the phone, not face to face. That can make a world of difference.

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