Exceptional Proff only

Jonathan Rauh is a doctoral candidate

at the University of South Carolina. His

interests include ethics and accountability,

education policy, and health policy. His work

has appeared in Public Organization

Review, Administration & Society, and

Education Policy Analysis Archives. In

his current position, he works in regulatory

affairs for the health insurance industry.

E-mail: [email protected]

98 Public Administration Review • January | February 2015

Public Administration Review,

Vol. 75, Iss. 1, pp. 98–110. © 2014 by

The American Society for Public Administration.

DOI: 10.1111/puar.12290.

Jonathan Rauh University of South Carolina

Abstract: Th is article explores the ability of elected offi cials to aff ect the autonomy of state ethics commissions. Th e author examines autonomy as a function of the capacity of ethics commissions to control their fi nances and personnel decisions and how the presence or absence of that capacity aff ects whether bureaucratic structures can function inde- pendently of politics. Using data from the 2011 State Integrity Investigation, the analysis extends previous arguments concerning political actors’ desire to aff ect ethics commissions. Findings suggest that elected offi cials use their positions to control the makeup of commission leadership and fi nancial resources, with the goal of decreasing commissions’ ability to act autonomously.

Practitioner Points • Ensuring that those who are monitored do not control appointments is essential for reducing political

interference on ethics commissions. • It is necessary to set positive standards of required experience for serving as a commissioner rather than just

relying on negative standards for who may not serve. • A commission with a higher budget relative to its required tasks will likely be more autonomous.

Constituencies expect ethics commissions to provide oversight of their public and elected offi cials. In a white paper for the National Conference of State Legislatures, Comlossy states that ethics commis- sions “work to ensure voters’ trust in policymakers and political institutions by monitoring compliance

with ethics laws and ensuring ethical conduct by those under their jurisdiction” (2011, 1). Commissions serve as watch- dogs for the public; they ensure that confl icts of interest are exposed, fi nancial dealings are done “in the daylight,” and the decision-making process is

transparent. In practice, however, ethics commissions are primarily compliance organizations that set mini- mum standards for what is acceptable (Smith 2003b).

Most commissions lack strong mandates but also can only interpret what is ethical according to set rules and guidelines. Ethics commissions and most ethics policies have been born of scandals (Rosenson 2003)—the trend of creating state ethics commis- sions can be traced to Watergate. Ethics policies, therefore, tend to be responsive and do not refl ect the true preferences of elected offi cials (see Anechiarico

Predicting Political Infl uence on State Ethics Commissions: Of Course We Are Ethical—Nudge Nudge, Wink Wink

Political infl uence over ethics commissions is an important topic in thinking about the legiti-macy of these commissions. However, politi- cal infl uence over ethics commissions presents some sticky problems for the current literature on bureau- cratic autonomy. No bureaucracy has the authority to make its own mandate, but it is important that some have greater autonomy than oth- ers. Ethics commissions do not usually regulate the providers of public goods or other private entities; instead, they target elected and public offi cials, that is, those who make public policy. Th erefore, it is desirable that ethics commis- sions have broad mandates; have the authority, fund- ing, and capacity to accomplish those mandates; and be able to do so without ex ante or ex post pressure from elected offi cials.

Commissions are politically empowered institu- tions that have a responsibility to monitor those who empower them. Th is power and the ability of commis- sions to harm elected offi cials both economically and politically may give elected offi cials an incentive to exert control over ethics commissions.

No bureaucracy has the author- ity to make its own mandate, but it is important that some have greater autonomy than

others.

Predicting Political Infl uence on State Ethics Commissions: Of Course We Are Ethical—Nudge Nudge, Wink Wink 99

of control over the types of actions that a commission can take and how it can go about enforcing ethics policies.

Th e foregoing is a discussion of why elected offi cials would seek to infl uence commissions, but it does not provide a logic of how. In considering how elected offi cials infl uence commissions, I attempt to link the literature on ethics commissions with the literature on bureaucratic autonomy to develop a theory about how and when we would expect commissions to have greater autonomy. I claim that elected offi cials seek to control the capacity of commissions to act as well as the structural independence of commissions. I hold that elected offi cials will seek to limit the autonomy of commissions by controlling the availability of resources and the structure of the commission.

Bureaucratic Autonomy and Ethics Commissions Autonomy of Ethics Commissions A variety of theoretical perspectives have been used to explain bureaucratic autonomy. Fukuyama conceptualizes bureaucratic autonomy as “the notion that bureaucrats themselves can shape goals and defi ne tasks independently of the wishes of the principals” (2013, 10). Others, including Rotberg (2014), consider bureau- cratic autonomy to be the development and use of internal capac- ity and resources without mediation by political institutions. Even scholars who consider autonomy from the principal–agent perspec- tive note the need to examine an agency’s capacity (Hammond and Knott 1996; Whitford 2005).

Th e principal–agent approach tends to focus on the relationships between politicians as elected offi cials and bureaucrats as the imple- menters of their policies. Within this relationship, the principal directs the agent by mandating a goal, but at times also mandating how to achieve that goal—for example, increasing confi dence in political institutions by requiring the disclosure of all fi nancial inter- ests. Autonomy, from this perspective, is understood as the degree to which the agent can direct its own goals or decide on its own methods for achieving goals absent direction from the principal. A completely autonomous bureaucracy, under this construct, receives no mandates whatsoever, whereas a fully nonautonomous bureauc- racy is micromanaged by the political principal (Fukuyama 2013).

Th e capacity approach addresses how bureaucrats use the variety of resources and tools at their disposal to achieve their mandates or implement policies. Capacity is an important prerequisite for auton- omy. As Krause notes, “even well-intentioned institutions lacking suffi cient capacity are incapable of making credible policy commit-

ments” (2009, 18). Additionally, Huber and McCarty (2004) fi nd that even when agencies are equally competent, those with less capacity are less autonomous.

From the previous literature, it is easy to claim that ethics com- missions are often not autonomous (Rosenson 2003, 2006; Smith 2003a, 2003b). In her 2003 work, Rosenson shows that elected offi cials are more likely to empower ethics commissions when they do not perceive them as a threat to their economic well-being. Further, Smith (2003a, 2003b) shows that although ethics com- mission staff s would like to engage in more training, investigation, and enforcement activities, they are often hamstrung by a lack of

and Jacobs 1996; Mackenzie and Hafken 2002; Rosenson 2006). Because of these factors, ethics commission mandates generally are not well defi ned and usually target popular notions of corruption, such as quid pro quo, while failing to address more nuanced indica- tors of corruption, such as strong fi nancial disclosure requirements for elected offi cials (Rosenson 2006; Tolchin and Tolchin 2001). Th is failure is antithetical to the strong legal mandate that others claim is so important for autonomy (Carpenter 2001; Fukuyama 2013).

Th e problem for the literature on autonomy arises from the fact that ethics commissions are compliance organizations and primarily in the business of sounding alarms on unethical behavior by public and elected offi cials. Control of the bureaucracy, particularly legisla- tive control, is exercised when an agency fails to provide expected outcomes and constituents complain loudly, in this case pointing out ethical failings (McCubbins and Schwartz 1984; Weingast and Moran 1983). What this means, then, is that a commission that is captured by the legislature and incapable of triggering alarms is indistinguishable from a commission that is so strong that elected offi cials are terrifi ed of stepping out of line. I describe this in greater detail next.

The Purpose and Creation of Ethics Commissions Th e majority of ethics commissions had their start with the Watergate scandal (Rosenson 2003). Even today in states with eth- ics commissions, new ethics regulations tend to follow visible and public scandals (Goodman, Holp, and Ludwig 1996; Pelizzo and Stapenhurst 2004; Rosenson 2003). After North Carolina Speaker of the House Jim Black was convicted of federal corruption charges in 2007, for example, that state passed some of the most restrictive lobbying laws in the country (Kies 2012).

Although there have been successes in combatting corruption, eth- ics commissions have also been used as a tool of political attack, often resulting in administrative gridlock. Gilman and Denhardt (2005) note that often well-meaning individuals will attempt to write empowering regulations that “out-ethics” everyone else, thus leading to either administrative gridlock or regulations that address potential charges of quid pro quo but do not address more nuanced possibilities for corruption, such as lax fi nancial disclosure require- ments. Th ese are the sorts of codes that can be draconian in nature and treat taking a pen from the agency stockroom as equivalent to embezzlement (Tolchin and Tolchin 2001) but do not address things as simple as requiring elected offi cials to reveal all of their invest- ments (see Rosenson 2003, 2006). Th is creates a situation in which elected offi cials create ethics commissions that are primarily symbolic in nature. Th ey serve as a palliative for public distrust but do not really do much in the way of oversight.

Limiting a Commission’s Autonomy Elected offi cials face the problem of an appointed ethics commis- sion with the ability to censure or otherwise harm them. Th erefore, barring some form of control over the commission, elected offi cials would face an uncertain set of outcomes regarding the commission’s ability to harm them politically or economically. If one assumes that elected offi cials are rational, or even politically sophisticated, then they should seek to mitigate potential threats by exerting some form

Capacity is an important pre- requisite for autonomy.

100 Public Administration Review • January | February 2015

argue that elected offi cials seek to make the bureaucracy more responsive by increasing the number of administrative positions occupied by appointees. Wilson (1989) also claims that, as appoint- ees, bureaucratic agents face greater pressure to respond favorably to political principals. Further, Hammond and Knott (1996), Snyder and Weingast (2000), and Epstein and O’Halloran (1999)4 explore political principals’ use of appointments to achieve their desired ends and fi nd that the ability to appoint is critical to achieving desired policy outcomes under a variety of conditions, including carrying out the policy beyond the political life of the appoint- ing authority. Th is makes sense when it comes to ethics commis-

sions, if one thinks about Rosenson’s (2003) arguments. Elected offi cials may empower commissions when they do not perceive that the commission will be a threat. However, institutions change, so rather than a one-off concern about the threat posed by commis- sions to immediate well-being, appointment

authority may be seen as a way of ensuring that commissions do not become a threat later on.

Of course, states vary based on how much appointment authority any individual, or set of individuals, has over appointing com- missioners. Th erefore, the ability of elected offi cials to infl uence a commissioner or to appoint individuals friendly to their positions is likely conditioned on how much authority that individual has over the appointment. Appointment authority can vary based on how many commissioners a single individual can appoint. For example, if the governor can appoint three people to a fi ve-person commis- sion and the president pro tempore and Speaker of the House can each appoint one, then this likely means that the governor has more infl uence over the commission than the Speaker or president pro tempore. However, appointment authority can also be checked procedurally through things such as confi rmation requirements. In a case in which there are no confi rmation requirements, the appointing individual is likely more able to appoint his or her most preferred person to a commissioner’s post. When there are confi rma- tion requirements, the appointing individual may have to temper his or her position.

Removal power. While the appointment of commissioners may have ex ante infl uence, removal power represents hard ex post infl uence. Although it may be diffi cult to conceive of elected offi cials appointing individuals they know would harm them, it is important for them to have the threat of removal to ensure that their infl uence over individuals can be maintained (Epstein and O’Halloran 1999). Appointment authority allows elected offi cials to decrease the odds of the commission implementing ethics policies that are harmful to them. If the commissioner were to “go native,” though (Kingdon 1995), then removal power can be a hedge to ensure that members of the commission remain friendly or otherwise easily infl uenced. Canes-Wrone, Howell, and Lewis (2008) and Epstein and O’Halloran (1999) claim that appointment power is essentially useless without the power to remove.

Like appointment authority, the power to remove commissioners varies from state to state. Some states allow the removal of a com- missioner without cause, some require that cause be shown but do not defi ne what constitutes cause, and still others allow removal

fi nancial and staffi ng resources. Rosenson’s (2003, 2006) arguments are based on the belief that elected offi cials have little incentive to provide commissions with a high level of autonomy. Smith’s (2003a, 2003b) arguments rest on the belief that for as much as members of the public state that they want ethical elected offi cials (see Bowman 1991), actually enforcing ethics and building ethical capacity tend to be primarily symbolic exercises (see also Morgan and Reynolds 1997; Tolchin and Tolchin 2001).

In examining a commission’s autonomy, I test several expecta- tions from both the principal–agent and capacity approaches. To test these expectations, I conceptualize the autonomy of an ethics commission as (1) hav- ing freedom from political interference and (2) having the resources necessary achieve its goals. Th ese are standard conceptualizations of autonomy in much of the literature (see Araral 2009; Christensen 2001; Moe 1990; Rotberg 2014). Given that ethics investigations can be politically damaging to elected offi cials, and ethics convictions even more damaging, elected offi cials have an incentive to keep a commission’s level of autonomy in check.1 Although there is little incentive to provide autonomy, some autonomy must be present—otherwise the commissions would be commissions in name only, meaning that the threat from the commission would not really exist.2

To explain how autonomy is manifested, I draw on the principal– agent and capacity approaches. From the principal–agent approach, I examine the ability of elected offi cials to control appointments to a commission and the commission’s budget as explanations for a lack of freedom from political interference. From the literature on organizational capacity, I consider a commission’s fi nancial resources and its staffi ng resources as explanatory factors for a lack of freedom from political interference.

Appointment and Budget Independence under Principal– Agent Theory A key assumption under principal–agent theory is that one actor (the principal) issues directives that are then executed by another set of actors (the agent or agents) (Baumgartner and Jones 2009; Waterman and Meier 1998; Weingast and Moran 1983). Some, including Wood and Waterman (1991),3 have argued that a primary mechanism for control is appointing administrators who are sympathetic to the positions of the elected branch. It is within these frameworks that I approach autonomy within principal–agent theory—that is, an elected offi cial’s ability to appoint a member of the ethics commission aff ects his or her ability to wield political infl uence over that commission, and, further, a principal’s ability to control the agent’s fi nances also serves as a means of control.

Appointment power. It is hard to imagine that politicians would willingly appoint an individual who is antagonistic toward them. After all, if the ethics commission’s focus is on policy makers, why would those policy makers appoint someone they knew would seek to harm them? Instead, it is more logical to assume that the more control an elected offi cial has over who sits on the ethics commis- sion, the more he or she will be able to infl uence that individual. Th e literature on the role of appointment power and bureaucratic autonomy speaks to this. For example, Bendor and Moe (1985)

Elected offi cials may empower commissions when they do not perceive that the commission

will be a threat.

Predicting Political Infl uence on State Ethics Commissions: Of Course We Are Ethical—Nudge Nudge, Wink Wink 101

but enforcement and investigation actions may be secondary to these activities. Additionally, Smith (2003b) and Herrmann (1997) both note that more eff ective ethics commissions tend to have greater fi nancial capacity. Given these fi ndings, I examine capac- ity in terms of fi nancial capacity and staffi ng capacity, two areas that are often noted in the literature on organizational capacity, as well as closely related to organizational capacity, such as resource dependence.

Financial capacity. It is generally accepted that when agencies have more fi nancial resources with which to accomplish their goals, they have greater autonomy (e.g., Malatesta and Smith 2011; Pfeffer and Salancik 2003; Sharfman et al. 1988). With regard to ethics commissions specifi cally, Herrmann (1997) and Smith (2003b) both note that commissions are under great stress to meet their administrative requirements with limited resources; this, in turn, may limit their ability to carry out investigations and enforcement actions. For example, commissions are required to create and fi le documents, create annual reports, engage in educational activities, and so on, but they also engage in investigations and enforcement actions.

Smith (2003b) examines three state ethics commissions (Connecticut, New York, and Florida) and notes that although the commissions satisfi ed their mandates for fi ling and accepting forms from elected and public offi cials, they only had the fi nancial resources to conduct serious reviews of 5 percent to 10 percent of these forms. He also fi nds that the ethics commissions that were viewed as the most eff ective were those with the most capacity to engage in activities such as investigations or substantive review of disclosure forms. As noted earlier, though, most commissions lack the resources to engage in meaningful reviews or to conduct serious investigations. Both Smith (2003b) and Herrmann (1997) note that an increase in fi nancial capacity would be necessary for the commis- sions to overcome these stresses.

In examining fi nancial capacity, it is necessary to take two things into account: the fi rst is what the commissions must accomplish, that is, what is the commission tasked with doing; the second is how much budget the commission has to accomplish those tasks. A commission’s tasks include things such as developing forms and manuals, compiling annual reports, and, of course, conducting eth- ics investigations.

In a review of ethics commission activities, Morgan and Reynolds (1997) conclude that ethics commissions dedicate much of their fi nancial resources to what are ostensibly paper pushing exercises, such as creating new forms and emphasizing superfi cial norms of propriety. A unifying thread running through the literature cited here is that, given their levels of fi nancing, many ethics commis- sions are forced to trade investigations and enforcement actions for administrative goals. Morgan and Reynolds (1997) go further than Smith (2003b) in claiming that even meeting those adminis- trative goals is only possible a superfi cial level—certainly not at a level that would imply the commissions are acting autonomously. Additionally, fi ndings from the 2012 State Integrity Investigation suggest that when it comes to meeting their administrative require- ments, Morgan and Reynolds’s (1997) harsher interpretation is likely correct. In many states, forms were left unfi led, and reviews of

only for specifi c violations, such as the commission of a felony. Given what is known about removal power and autonomy in the traditional bureaus, removal power is also likely an important factor in the autonomy of ethics commission, again because ethics policies constitute a set of policies that elected offi cials would not subject themselves to if they had their most preferred position.

Budget independence. Even though ethics commissions collect fi nes, they tend to not be self-funding organizations. Additionally, effective enforcement or collection of fi nes presumes that ethics commissions are effective, which, in turn, presumes that elected offi cials are not infl uencing them. Rather, ethics commissions are funded in one of two ways: either as a fl ow-through of the budget of one of the elected branches or as line items in the state budget. Given that elected offi cials have no incentive to ensure an autonomous commission (Mackenzie and Hafken 2002), it seems that if they desired to infl uence the commissions, they could do so more easily with more control over the commission’s budget.

According to Behn (2003), elected offi cials may seek to control budgets because budgets refl ect an organization’s priorities. If budgets refl ect priorities and also aff ect the ability of a commis- sion to behave autonomously (Bendor and Moe 1985; Carpenter 2001; Wood 1988), then the ability of a commission to request and control its own budget should be an important determinant of that autonomy. Th e ability to control the budget is important because doing so allows for control of priorities. It is likely that this ability is of great important on ethics commissions, if we remember that elected offi cials do not have an incentive to provide a commission with a high degree of autonomy. Bendor and Moe explain why this is the case: “Although bureaus can sometimes move to a paradise of exploding budgets and slack, they cannot do so when checked by even a primitive form of legislative oversight” (1985, 772). It seems, then, that if elected offi cials desire to infl uence the ethics commis- sion, then a good way to do so is to ensure that the commission does not have control over its own budget.

As an example, in states such as Maryland and Michigan, the budget of the ethics commission is simply a fl ow-through from the budget allocated to the offi ce of the executive. For Alaska’s Legislative Ethics Commission, the budget is a fl ow-through of the budget allocated to paying for legislative staff , expenses, and so on. Likewise, Alaska’s more general Public Offi ces Commission, which covers the execu- tive and executive agencies, is a fl ow-through of the budget allocated to the executive. Having the monitored branch responsible for controlling the funds of the body doing the monitored seems sub- stantively diff erent than situations in which the budget of the com- mission is a line item. Take, for example, states such as Connecticut and Maine, where the commission’s budget is a line item for an independent agency.

Organizational Capacity and Ethics Commissions Organizational capacity is critical for an organization’s autonomy (Carpenter 2001; Rotberg 2014; Yesilkagit 2004). No doubt organi- zations with more resources are able to exercise more autonomy (e.g., Huber and McCarty 2004). Smith (2003b) and Morgan and Reynolds (1997) argue that the eff ectiveness of ethics commissions is at least partly dependent on the capacity of staff to carry out man- dates, including education, fi ling reports, and developing manuals,

102 Public Administration Review • January | February 2015

course, not all states are as stressed as Delaware. Wisconsin has a staff of 34, Massachusetts has a staff of 24, and Pennsylvania has a staff of 18. Given the noted stresses that many ethics commission staff s are under, though, it is more likely that a larger staff relative to the commission’s duties will be able to act in a more autonomous manner thus leading in a more autonomous commission.

Data and Analysis Th e theory developed here was tested using data from the State Integrity Investigation. In 2011, the State Integrity Investigation, con- ducted by the Center for Public Integrity, surveyed political reporters across the 50 U.S. states. Blinded responses were reviewed by a second political reporter in each state, who either affi rmed or questioned the initial response. If a response was questioned, then both respondents had to provide justifi cation for their opinions. All fi nal responses required at least two independent sources of verifi cation, such as statutes, journal articles, or other corroboration. While the survey’s goal was to rank the states based on their risk of corruption, 26 of the survey’s 330 questions asked about the existence and independence of state ethics commissions. Additionally, because it was a survey of political reporters, the survey population could be expected to closely observe the political activities in their states, and therefore the fi ndings should be more accurate than surveys of average citizens.

Th e survey addressed 14 categories, including one that specifi cally addressed ethics enforcement agencies in the state. Th e questions in this category focused on the existence of merit appointments on

commissions, auditing of commissioner fi nan- cial disclosures, and such. Respondents were asked whether they agreed with a statement (table 1) addressing commissions’ freedom from political infl uence: “In practice, members of the agency or set of agencies tasked with

enforcing state ethics rules are protected from political interference.”

Hypotheses To examine the foregoing statement, fi ve hypotheses were tested.

Financial Capacity Hypothesis 1: As a commission’s fi nancial capacity increases, the commission’s perceived freedom from political interfer- ence will also increase.

A commission’s budget is related to the number of activities with which it is tasked. Commissions with higher task-to-budget ratios should show lower levels of eff ectiveness. Simply measur- ing the number of activities with which a commission is tasked is not suffi cient, however, because in addition to specifi c activities,

statements of fi nancial interest were years behind and received only cursory reviews—hardly a picture of a commission with the capacity to act autonomously.

Personnel capacity. My concern with staffi ng capacity is the ability of the day-to-day staff to address the commission’s goals. Specifi cally, I measure the number of staff the commission has available relative to the duties that staff must accomplish. It is known that commissions differ widely in how much staff they dedicate to achieving their goals. For example, ethics staff in Connecticut lamented that they did not have enough staff to do meaningful ethics trainings but instead were forced to rely on large conferences. The Florida commission was forced to contract out its ethics training because it simply did not have the staff to suffi ciently meet its mandate (see Smith 2003b). This is no small matter, as previous studies have shown that as staffi ng resources dedicated to combatting ethics violations increase, so, too, do corruption convictions (see Mackenzie and Hafken 2002). The stated reason for this is that staff have more time to dedicate to pursuing leads and investigating suspicious or incomplete disclosures.

In an analysis of diff erent cross-state surveys (Smith 2003b) and a review of fi ve years of literature, Menzel’s (2007) results indicate that employees of ethics commissions have a desire to pursue the commission’s goals to greater levels than the current staffi ng capacity allows. Employees noted that they were hamstrung by the need to satisfy multiple requirements, such as annual reporting or forms fi lings, while lacking suffi cient staff to engage in other activities such as training or enforcement. Th is was true both for administrative activities as well as investigations (see Smith 2003b).

Some have considered the professionalization of staff as a way of explaining autonomy. Staff size is typically used as one factor in professionalization, along with other factors such as salary or length of term. However, previous studies at the state level have shown that with the exception of staff size, these other factors are not strong explanatory factors for variation in ethics enforcement between states (see Goodman, Holp and Ludwig 1997; Menzel 2005; Smith 2003b).

Diff erent bureaucracies have diff ering degrees of control over the size of their staff (see Boyne, Poole, and Jenkins 1999). Ethics commissions do not have a great deal of sway over how much staff they have.5 Staffi ng capacity as a function of staff size has generally not been considered when examin- ing autonomy, with the exception of some of the European literature on the topic. For example, Ellinas and Suleiman (2012) fi nd that cabinets with smaller staff sizes are less autonomous than cabinets with larger staff s—which is similar to what I expect here. Given the literature cited earlier on how stretched commission staff s are, it makes sense to examine staffi ng capacity as a function of staff size.

Th ere is additional empirical justifi cation for this if one considers the limits on staffi ng capacity noted in the failings of many ethics commissions. For example, Delaware’s ethics commission consists of two staff members who are responsible for ethics trainings, producing and reviewing forms for all elected offi cials, compiling and annual report, and addressing ethics issues for the state’s nearly 48,000 public employees (see http://www.stateintegrity.org). Of

Table 1 Responses to Survey Question about Commissions and Political Interference

“In practice, members of the agency or set of agencies tasked with enforcing state ethics rules are protected from political interference.”

Strongly agree 8 Agree 16 Neither agree nor disagree 10 Disagree 4 Strongly disagree 3

Note: The sum is 41 because nine states do not have ethics commissions.

Ethics commissions do not have a great deal of sway over how

much staff they have.

Predicting Political Infl uence on State Ethics Commissions: Of Course We Are Ethical—Nudge Nudge, Wink Wink 103

n appointees/N appointees

_____________________ checks per appointment

= Authority Score

In the case of Colorado, the calculation for the legislature (Senate and House) would be as follows:

2/5 ___ 1 = 0.4 ___

1 = 0.4

In Colorado, there are no external checks on an appointee, such as Senate confi rmation or requirements of prior experience. In Wisconsin, however, there are six ethics commissioners. All must be former judges (check 1), must be nominated by the governor (check 2), and must be approved by both the Assembly (check 3) and the Senate (check 4). Th e measure for the governor’s authority would be as follows:

6/6 ___ 4 = 1 __

4 = 0.25

Th us, the lower the score, the less infl uence any single individual has over the appointment of a commissioner. Th is calculation method is preferable to simply using the percentage appointed by “the legisla- ture” or “the governor” because it captures the degree to which those appointments are the result of greater power in the hands of a single individual.

Finally, recall that not all commissions have oversight over all elected branches. Some have oversight over the legislature, some over the governor, and some over both. Rosenson (2003), Mackenzie and Hafken (2002), Smith (2003b), and others have shown that the leg- islature is more willing to use its appointment authority to impose checks on the potential ethical abuses of the governor than its own members. Similarly, it is unlikely that a governor who is overseen by the commission but has high appointment authority would appoint adversarial individuals.

However, the same may be true of the legislature. In fact, some have made the case that commissions may be largely symbolic (Smith 2003b), partly because legislators are able to empower ethics com- missions that only oversee the governor and not the legislature, and the public is none the wiser. All the public is likely to see is that there is an ethics commission, and people assume that the commis- sion must be making sure that politicians are acting with integrity.

Removal Authority Hypothesis 4: Unilateral removal authority will be associated with a decrease in the perception of freedom from political interference.

Th ere are other means of political infl uence that may be exerted directly on commissioners; chief among these is removal author- ity. Appointment power is one tool, but the power to remove is also a potent weapon (see Kingdon 1995; Lewis 2008). To capture this, the model ranked states based on how much control over the

commissions are empowered diff erently. Some have jurisdiction over the legislature and its staff , some over the executive and its staff , some over both, and some over all aspects of state government. Th e National Conference of State Legislatures (2014) collects data on ethics commission activities, including the number of activities in each state. In its data sets, ethics commissions can engage in up to seven activities: developing forms, developing manuals, reporting, subpoenaing witnesses, issuing advisory opinions, conducting ethics training, and developing annual reports (see table 2).

Capacity of Commission Staff Hypothesis 2: Commissions with larger staff relative to the number of issues addressed will be perceived as subject to less political interference.

Th ere are no reliable data on the types of individuals who serve on commissions (e.g., lawyers versus educators), but there is reliable information on the number of staff members and the number of activities for which a commission staff is responsible (table 2), providing a measure of staffi ng capacity, that is, the number of staff per mandated activity handled by the commission. As discussed earlier, if elected offi cials increase the workload of a commission without providing increased budget for staffi ng, the capacity of a commission to accomplish each task is diminished. Th erefore, a reduced staff -to-activity ratio should be associated with decreases in perceived eff ectiveness. In addition, as stated earlier, diff erences in staffi ng levels relative to budget likely also refl ect diff erent priorities. However, merely having a large staff does not guarantee the eff ec- tiveness of a commission. For example, although lawyers’ salaries are higher than those of educators, they may be more qualifi ed to conduct investigations with legal ramifi cations.

Structural Independence Hypothesis 3: As elected offi cials’ power to appoint commis- sioners becomes more dispersed, the perception of freedom from political interference will increase.

As mentioned earlier, there can be multiple individuals involved in appointing commissioners and multiple layers of confi rma- tion required. Additionally, the legislature will naturally have less centralized authority than the governor because making appoint- ments from the legislature necessarily involves more individuals with appointment authority. For example, in South Carolina, the governor appoints all commissioners without any checks. In Colorado, however, the commission comprises fi ve members: one each appointed by the governor, the president pro tempore of the Senate, the Speaker of the House, and the chief justice of the state supreme court; those four members together select the fi fth.

For this study, a variable was created to measure political control: the percentage of commissioners appointed by a given political body divided by the number of checks on an appointment:

Table 2 Responsibilities of Ethics Commissions

Activity

Develop Forms Develop Manuals Reporting Subpoena Powers Advisory Opinions Conduct Training Annual Report

Commissions (N) 44 40 39 49 45 42 32

Source: National Council of State Legislatures, http://www.ncsl.org/research/ethics/50-state-chart-state-ethics-commissions-jurisdic.aspx.

104 Public Administration Review • January | February 2015

political costs. Nevertheless, given Rosenson’s (2003) fi ndings about economic incentives, it is necessary to control for elected offi cials’ fi nancial stakes when considering a commission’s autonomy.

Socioeconomic Variables Socioeconomic variables have been shown to aff ect both the creation and use of ethics commissions. Th e current study examined existing ethics commissions and measured average taxable income per citizen in each state. Rosenson (2003) fi nds that wealthier states are more likely to establish ethics commissions because ethics commissions cost tax dollars, and additional tax revenues allow wealthier states to create commissions. Other studies (Meier and Holbrooke 1992; Menzel 1996, 2005) have found that wealthier individuals tend to fi le more ethics complaints. Additionally, income and educational attainment are highly correlated (Glaeser and Saks 2006). Th erefore, by controlling for income, the model also controlled for other socio- economic conditions that are associated with being better educated. For example, better-educated people tend to be more politically active. Given fi ndings about income and ethics commissions (Meier and Holbrooke 1992; Menzel 1996, 2005; Rosenson 2003), higher levels of income may be associated with higher perceived eff ective- ness of ethics commissions.

Finally, to account for political diff erences between states, the study measured the percentage of each state’s population that self-identifi ed as Democrat or strong Democrat. Although reporters’ opinions are likely more informed than the average citizen’s, theirs are still opinions that rely on selling newspapers to readers with political beliefs that are common within each state, and their responses may have been colored somewhat by those political attitudes. We know that partisan- ship infl uences thinking about ethics, given fi ndings that Republicans and Democrats have diff erent ideas about what constitutes corruption (Redlawsk and McCann 2005). Although both parties agreed that corruption constituted criminal behavior, they were diametrically opposed over whether favoritism constituted corruption.

Model Specifi cation A partial proportional odds model was used to test these hypotheses because of the use of categorical dependent variables. Table 1 shows clustering of the responses around “agree” and “neither agree nor disagree,” implying that the parallel slopes assumption needed for an ordered logit or ordered probit was violated. Th erefore, any predic- tions from traditional ordered models would be misleading. To test this, I ran an ordered probit, and the Brant’s test for proportional odds was signifi cant (chi-square = 231.99, p < .05), indicating that the parallel slopes assumption was violated and any coeffi cients would be biased. Using a partial proportional odds model loosens the assumption of parallel slopes and therefore seems to make more sense than using an ordered probit or ordered logit. Additionally, given the small number of observations, 1,000 bootstrapped resam- ples were used to estimate the model.

Th e model specifi cation was tested using a likelihood-ratio test between the model and a null model, as well as between the model and a larger model, using variables that have been previously shown to be predictors of corruption convictions: educational attainment and religiosity (Glaeser and Saks 2006), proximity of population centers to state capitals (Campante and Do 2013), and percentage of the state employed in the public sector (Meier and Holbrooke

removal process was held by a single person, from most restrictive to least restrictive (0 = a commissioner could not be removed; 1 = he or she could be removed only through a formal procedure; 2 = he or she could be removed for cause, but cause was not defi ned; 3 = he or she could be removed without cause). If an appointee could be removed, but only with the concurrence of another body, the action was coded as 2 because removal required a formal procedure. For example, in Colorado, where an appointee can be removed but only with the concurrence of the Senate, the value would be 2. In South Carolina, however, where the governor has unilateral control over appointment and removal, the action would be coded as 3.

Independence of Budget Hypothesis 5: Commissions that control their own budgets will be subject to less political interference than commissions whose budgets fl ow through those of elected branches.

To capture the independence of a commission’s budget, the survey asked whether the commission controlled its own budget (1 = yes, 0 = no). Responses were coded based on each state’s 2011 budget (the year of the survey), and a text search was done for both the ethics commission and the empowering statute of the ethics commission.6 If there was no mention of the commission in the state budget, budget independence was coded as 0.

Economic Interests In looking at how ethics commissions are created, Rosenson’s (2003) main hypothesis is that legislators with higher salaries will be less likely to vote for the creation of commissions, as commissions could threaten their economic self-interest. However, there are economic interests that are not accounted for simply by measuring the offi cial salaries of elected offi cials. Th ey may have assets in regulated indus- tries, own large parcels of land around areas that the state may wish to buy, or be independently wealthy. Of course, access to true eco- nomic interests presumes strong asset disclosure regulations—some- thing that many legislatures have been loath to provide, preferring to regulate quid pro quo relationships (Rosenson 2006; Tolchin and Tolchin 2001).

Rather than examining only the compensation from salaries (Rosenson 2003, 2006, 2009), for the current study, the ratio of legislative salaries to the average salary in each state was calculated. From these averages, it could be determined whether an individual legislator was incurring a cost by serving in the state legislature. A similar measure has been used to examine corruption risks in national legislatures (Caselli and Morelli 2004). Th at study shows that poorer citizens who ran for offi ce had more incentive to behave honestly in offi ce because they could reap more rewards from staying in offi ce. According to Caselli and Morelli (2004), this is because their salaries in offi ce were higher than their alternatives in the private sector.

In states with low legislative salaries relative to the average salary in the state, it is likely that the people in offi ce would have out-of- offi ce incomes signifi cantly higher than the average salary in their state and would have greater personal fi nancial resources. Th erefore, the economic consequences of bad behavior are not as great as for these individuals because they could more easily absorb the costs of any fi nes than the average citizen, although there might be

Predicting Political Infl uence on State Ethics Commissions: Of Course We Are Ethical—Nudge Nudge, Wink Wink 105

Conclusions General Findings Th e results of my model provide evidence that current conceptu- alizations of autonomy are not suffi cient for explaining autonomy on ethics commissions. More broadly, this may point to a need to provide more nuances to discussions of autonomy based on an agency’s proximity to politics. Specifi cally, the ability of elected

offi cials to control the fi nancial and person- nel capacity of commissions is a determinant of a commission’s autonomy, although the ability to control the structural independence of the commission appears to be the strongest determinant—see table 3.

Given that those making ethics policy are also subject to ethics policy, the ability to control

the capacity of ethics commissions to act and the independence of the commissions would seem to be a means that elected offi cials would employ to control the ability and/or desire of a commission to take action. My fi ndings support this notion. In this way, my fi ndings indicate the primacy of politics in a specifi c relationship between elected offi cials and the bureaucracy. Although this study is confi ned to ethics commissions, I believe similar fi ndings would hold for other agencies with the capacity to directly aff ect elected offi cials.

Findings for Financial Capacity Increases in fi nancial capacity and increases in staffi ng capacity are both associated with increases in the probability of respondents agreeing that ethics commissions are free from political interfer- ence. Financial capacity shows a stronger eff ect, though. Increases in a commission’s fi nancial capacity are associated with increases

1992). Th e current model performed better than either the null or the more saturated model.

Also note that the partial proportional odds model has certain char- acteristics that make it preferable to the multinomial logit model— which also loosens the proportional odds assumption. Chief among these is that the partial proportional odds model allows for the coeffi cients to be the same or diff erent for each category, something that cannot be done in other models, such as a multinomial logit. Th is is because the multinomial logit frees all variables, when in fact the parallel lines assumption may only be violated by a few of the variables.

Robustness Checks As a check of robustness, I analyzed the data using three separate models that included variables that are traditionally considered eff ective predictors of corruption: percentage of the population with a college degree or higher (Meier and Holbrooke 1992); proximity of state the capital to population centers (Campante and Do 2013); and share of the population that attends church regularly (Uslaner 2004). Additionally, all models included variables to capture compe- tition between the branches—for example, if a governor was moni- tored by the commission and the majority share of appointment authority was in the legislature. As indicated by the likelihood-ratio test, the saturated model did not provide a better explanation than the more parsimonious model. However, the interactions for politi- cal competition did present some interesting fi ndings, namely, that when a governmental branch has control over appointments and is also monitored by a commission, the perception that the commis- sion is free from political interference declines.

Table 3 Commissions Are Free from Political Interference

Model 1 Model 2 Model 3

b boot s z Sig. b boot s z Sig. b boot s z Sig.

(Intercept):1 0.830 0.563 1.475 4.391 0.681 6.444 *** 2.585 0.786 3.287 ** (Intercept):2 –0.119 0.559 –0.213 3.418 0.674 5.068 *** 1.598 0.781 2.046 * (Intercept):3 –1.289 0.559 –2.304 * 2.172 0.668 3.252 ** 0.372 0.776 0.479 (Intercept):4 –2.982 0.565 –5.279 *** 0.326 0.664 0.491 –1.509 0.774 –1.949 Budget per mandated activity 1.379 0.280 4.931 *** Budget per n offi cials overseen 0.000 0.000 0.736 Staff per mandated activity 0.000 0.051 –0.009 0.108 0.053 2.031 * Legislature’s appointment authority –3.733 0.409 –9.131 *** –4.209 0.411 –10.238 *** Governor’s appointment authority –1.631 0.297 –5.488 *** –1.955 0.302 –6.480 *** Removal power –0.289 0.053 –5.499 *** –0.257 0.051 –5.015 *** Independence of budget 0.086 0.183 0.469 0.191 0.182 1.047 Economic interests 0.273 0.123 2.222 * 0.298 0.145 2.049 * 0.400 0.132 3.030 ** Average state income 0.000 0.000 –1.126 0.000 0.000 –4.071 ** 0.000 0.000 –3.250 ** % Dem. or strong Dem. 3.243 0.846 3.833 ** 3.456 1.015 3.406 ** 3.062 0.940 3.257 **

Z levels: * 1.960 (0.05); ** 2.576 (0.01); *** 3.291(0.001).

Residual deviance 135.547 129.769 128.712 AIC 149.547 155.769 154.712 BIC 162.348 179.541 178.484 Log-likelihood –67.774 –64.885 –64.356 LR test versus saturated model 3.382 DF 177.000 171.000 171.000

Model 1: controls only; model 2: independence of budget as budget per number monitored; model 3: independence of budget as budget per mandated activity. Note that model 3 using budget per n offi cials overseen is the preferred model given the lower AIC and BIC. Note that AIC for model 1 is smallest, but AIC includes a penalty for additional parameters, hence the distinction to be made is between model 2 and model 3. Model 3 indicates budget per mandated activity is signifi cant and in the expected direction of H1; staffi ng capacity is signifi cant and in the expected direction of H2; independence of appointees is signifi cant and in the expected direc- tion of H3; removal power is signifi cant and in the expected direction of H4; and independence of budget (H5) is rejected. Standard errors are based on an N = 1,000 resampling.

Th e ability of elected offi cials to control the fi nancial and per-

sonnel capacity of commissions is a determinant of a commis-

sion’s autonomy.

106 Public Administration Review • January | February 2015

must be correlated; however, a robustness check using only workload as a variable without budget or staffi ng did not perform any better or change the model’s coeffi cients. Additionally, table 4 shows that there is not even a weak correlation between the variables in my model. I would argue, then, that because these are both measures weighted by the number of mandated activities, they serve as a strong indication that elected offi cials use workload as a means of aff ecting budgets and controlling fi nancial capacity. Staffi ng decisions are obviously related to budget, although not directly so, but they are also a function of the goals of an organization’s leaders. Knowing this, staffi ng per man- dated activity likely becomes signifi cant in the presence of budget per mandated activity because both are related to elected offi cials’ ability to control commissions. Financial capacity as measured by budget per mandated activity is directly related to the decisions of elected offi cials. Staffi ng capacity, on the other hand, is indirectly related to the decisions of elected offi cials by way of the goals espoused by those whom they appoint to a commission’s leadership.

Increasing workloads serves as an ex ante means of political infl u- ence similar, to other procedures detailed by others such as Cox and McCubbins (1987). Although this variable was signifi cant, the changes as staff per mandated activity increases closely track the predicted probabilities of the model generally (i.e., there is not a large change in predictions when allowing staff per mandated activity a one-standard-deviation increase with all else constant). A likely reason for this is that staffi ng decisions are decisions by the commission and may refl ect the attitudes of those who are appointed by elected offi - cials. Th erefore, one could consider workload to be an attitudinal trait of the commission’s leadership.

Findings on Structural Independence Weaker removal authority and increased independence of personnel both increase the probability of respondents agreeing that com- missions are free from political interference. Th e strongest eff ect of any variable comes from the measure for independence of person- nel, particularly Increases in legislative control over appointments. As the appointment authority of elected offi cials increases, the model closely predicts the distributions that are seen in the data. Once interaction eff ects (i.e., competition between the branches) are accounted for, then the results show that political infl uence is dependent on which branch is monitored and which branch has appointment authority. When the commission has oversight over the legislature but the legislature has a high degree of appoint- ment authority, the likelihood of a respondent agreeing or strongly agreeing that the commission is free from political interference is lower than when the governor has more appointment authority (see table 5). Just as important, it is more likely that respondents will

in perceived freedom from political interference. Th is is important for two reasons. First, it is in keeping with Smith’s (2003a, 2003b) claims that commissions may be forced to engage in educational and training activities at the expense of other, more exploratory activities. My model provides empirical evidence that this is indeed the case. Additionally, because the budgets for commissions are approved by the legislature, this may be a way the legislature keeps the commis- sion “under thumb,” so to speak. Th e legislature can task a commis- sion with a large number of items but not provide a budget suffi cient to accomplish all of the administrative and high-road responsibilities and still have a suffi cient amount left over for investigations.

If this is the case, then it may call into question the legitimacy of a commission’s fi ndings. It may be the case that more unethical activity is going on that the public is aware of, and it only comes to light when the commission has resources to investigate. Given these limited resources, and in light of recent evidence from New York and California, serious (criminal) unethical behavior is more likely to be discovered in federal investigations. If the legislature can ostensibly infl uence commissions through the budget, then the kinds of investigations that a commission chooses to conduct will be either glaringly obvious violations in which a conviction is almost a certainty or targeted against those least able to fi ght back. Th is may explain Smith’s (2003b) observation that most ethics investigations target low-level functionaries instead of senior executive staff —they are easier targets and lack the resources to mount a vigorous defense.

Findings for Staffi ng Capacity My model also shows that as the number of staff per mandated activity increases, the commission’s perceived freedom from political interference increases as well. Th is is expected given the previous literature on bureaucratic autonomy (i.e., the ability of bureaucrats to act autonomously increases as they have more capacity to address mandated activities). Additionally, Fukuyama (2013) has shown that elected offi cials often pass multiple, and often confounding, man- dates in an eff ort to steer the bureaucracy. Th e fact that this variable is signifi cant as an indicator for freedom from political interference is interesting, though. Th is is because it indicates that these respond- ents view workload as a means of exerting political infl uence.

Th is view is bulwarked by the fact that staff per mandated activity was not signifi cant in model 2, which used budget per member as the functional form for measuring fi nancial capacity; however, it was signifi cant in model 3, which used budget per mandated activity as the measure of fi nancial capacity. One may be quick to assume that because both the measures for staffi ng capacity and fi nancial capacity use the number of mandated activities as the denominator, then they

Table 4 Correlation of Independent and Control Variables

x 1 2 3 4 5 6 7 8 9

11 Legislature’s appointment authority 1.000 22 Governor’s appointment authority –0.259 1.000 33 Budget per mandated activity 0.151 0.164 1.000 44 Removal power –0.055 –0.213 –0.075 1.000 55 Independence of budget –0.142 0.229 –0.229 –0.181 1.000 66 Staff per mandated activity 0.010 0.136 –0.078 0.091 0.308 1.000 77 Average taxable income –0.102 –0.065 –0.144 –0.348 –0.150 –0.127 1.000 88 % Dem or strong Dem. –0.094 0.077 0.166 –0.030 –0.012 –0.262 0.260 1.000 99 Legislature’s economic interests –0.029 0.056 –0.192 0.043 0.062 0.246 –0.053 –0.078 1.000

Note: No item shows a strong correlation with any other item, thus indicating that autocorrelation should not be an issue with these variables.

Predicting Political Infl uence on State Ethics Commissions: Of Course We Are Ethical—Nudge Nudge, Wink Wink 107

indicates that elected offi cials use removal, or the threat of removal, as a means of infl uencing commissioners. Th is is in keeping with previous fi ndings for political control over the bureaucracy—that is, the ability to appoint is important for getting like-minded people in place, but the threat of removal is necessary to keep them in line with one’s way of thinking (see Kingdon 1995; Lewis 2008).

Discussion Practical takeaways. From the study fi ndings, it is possible to compare a commission that is free from political infl uence to one that is not free. This comparison should provide a structural example to those who seek to reform or establish such institutions. The ethics commission in Wisconsin was perceived by both the respondent and reviewer from that state to be largely free from political infl uence. In Wisconsin, the governor has only weak appointment authority, and the legislature has none. There are merit requirements for those who can serve as commissioner, as they all must be former elected judges (NCSL 2014). Additionally, no commissioner may have partisan affi liations or be an offi cer or employee of any state or local organizations associated with political activity. Although all six commissioners are selected by the governor, they must be approved by the House and Senate (NCSL 2014).

Th ese requirements are indicative of the high value placed on the independence of Wisconsin’s ethics commission. Additionally, the fact that commissioners must be former judges shows concern for the quality and experience of the individuals serving as commission- ers. Because of strong merit requirements and the fact that no single individual can be appointed because of a political favor, the percep- tion of freedom from partisan interference is very high.

If we compare Wisconsin’s commission to one perceived as not free from political interference, such as Delaware’s, the diff erences in institutional design are stark. Delaware has loose restrictions concerning who may serve on the commission—more a wink and a nod to independence than anything more robust. In Delaware, the only political restrictions are that an appointee cannot be an

strongly disagree or disagree that the commission is free from politi- cal infl uence when the monitored branch also has more centralized appointment authority. Note, though, that the eff ect is stronger for the governor than for the legislature.

From the foregoing, several fi ndings are available. First, the respond- ents recognize the confl ict of interest when the branch that is overseen by the commission also has the bulk of appointment authority over the commission. Th is seems like an obvious point, but it is one that is not readily considered by the public. Additionally, given that the design of commissions is a conscious process, this supports a claim that when commissions were created, elected offi cials understood that they could become a threat and so sought means of maintaining con- trol over them. Th is goes beyond Rosenson’s (2003) fi nding that when elected offi cials’ economic infl uence is not threatened, they are more likely to empower ethics commissions. It shows that it is not just that commissions are formed when they are not threatening but also that elected offi cials actively seek to keep them from becoming a threat.

Next, in looking at gubernatorial oversight, it is quite clear that the governor’s unitary infl uence has more impact than the legislature’s more diff use infl uence (see table 6). Additionally, the perceived freedom from political infl uence is lower in general when the governor is overseen versus when the legislature is overseen. It may very well be the case that the governor as a unitary fi gure can exert more infl uence over the commission than the legislature as a whole. However, another potential explanation for this comes from theories by Niemi, Stanley, and Vogel (1995) by and Hale (2013). Th e gov- ernor tends to be seen as the locus of control in state politics and in general tends to receive more credit and more blame than he or she is really entitled to. In other words, the governor’s position as the fi gure head and most visible individual in state politics means that respondents may believe that he or she has more infl uence over the commission than he or she really does.

Finally, as it becomes more diffi cult to remove a commissioner, perceived freedom from political interference increases. Th is

Table 6 Interactions between Oversight and Appointment Authority

Strongly Disagree Disagree Neither Agree nor Disagree Agree Strongly Agree

Legislature is overseen as legislative authority increases 0.065 0.162 0.324 0.364 0.084 Legislature is overseen as gubernatorial authority increases 0.028 0.081 0.223 0.479 0.182 Differences between oversight of legislature 0.037 0.081 0.101 –0.115 –0.098 Governor is overseen as gubernatorial authority increases 0.227 0.326 0.285 0.141 0.021 Governor is overseen as legislative authority increases 0.108 0.231 0.343 0.267 0.049 Differences between oversight of governor 0.119 0.095 –0.058 –0.126 –0.028

Note: Differences are between the perceived freedom from political interference under different conditions for who has the most centralized appointment authority.

Table 5 Predicted Probabilities, One Standard Deviation Change in x

Strongly Disagree Disagree Neither Agree nor Disagree Agree Strongly Agree

Budget per mandated activity 0.058 0.084 0.219 0.426 0.213 Staff per mandated activity 0.095 0.114 0.234 0.374 0.183 Legislature’s appointment authority 0.366 0.242 0.247 0.132 0.013 Governor’s appointment authority 0.216 0.208 0.305 0.231 0.04 Removal power 0.082 0.108 0.261 0.402 0.147 Legislature’s economic interests 0.056 0.077 0.213 0.436 0.218 Average taxable income 0.039 0.056 0.169 0.437 0.299 % Dem. or strong Dem. 0.142 0.164 0.306 0.313 0.075 Predicted probabilities 0.091 0.107 0.225 0.376 0.201 Actual distribution of data 0.087 0.109 0.239 0.369 0.196

Notes: Predicted probabilities include one standard deviation. Measures of appointment authority range from 0 to 1 for the governor and 0 to 0.6 for the legislature.

108 Public Administration Review • January | February 2015

3. Wood and Waterman (1991) made several arguments about the means through which elected offi cials can control the bureaucracy, including changing budgets, legislative signaling, and administrative reorganization, but that appointment was the most important means of control.

4. Appointment power was considered important for the bureaucracy, although the full study was dedicated to the question of “who” gets authority delegated to them (courts, state actors, local actors, independent commissions, regulatory agencies) and what level of authority the principal retains over these actors.

5. If one reads a state’s codes of law dealing with control of staff within the branches, one will see that control of the staff within the political branches is a power given to the branch itself as opposed to an external body. A Statenet.com (LexisNexis) search of state codes dealing with control of legislative and execu- tive staff s, aside from agency staff , reveals that the branches (often delegated to the committee or commission level) have authority in determining staffi ng and qualifi cations for personnel employed within the branch.

6. Proper names of the commissions and empower- ing statutes are available at http://www.ncsl.org/ research/ethics/state-ethics-commissions.aspx.

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A key external factor in designing or reform- ing ethics commissions is ensuring that there are standards of competence that would be diffi cult for an elected offi cial to manipulate. For example, states could require that creden- tials be validated by an external source, such as the state bar association or state supreme court, for judges serving as commissioners. Negative standards, such as requiring that a commissioner not be an elected offi cial, may provide a guise of independence but do not appear to be very eff ec- tive at preventing political interference. Spreading the responsibil- ity for appointment among the branches of state government and prohibiting confi rmation without external validation of merit may decrease the ability of elected offi cials to infl uence the commission.

Future research. Ethics commissions should be assessed from a functional perspective rather than a symbolic perspective. For example, the fi nes that ethics commissions are able to levy are relatively weak compared to the consequences of a criminal prosecution. However, it should be acknowledged that commissions also serve a symbolic function, in that they point to an ideal of accountability and a standard of what com munities will and will not tolerate. Both the functional and the symbolic aspects of commissions are important, and they are not mutually exclusive. However, meeting the functional requirements of an ethics commission must go beyond minimal standards, or it will not necessarily satisfy symbolic requirements, for reasons related to the fi ndings of this study.

Acknowledgments I wish to thank Mark Tompkins, Neal Woods, Xuhong Su, Tima Moldogaziev, Phil Jos, and the anonymous reviewers for their help- ful comments.

Notes 1. On a side note, new ethics standards tend to follow scandal, but these standards

tend to be reactive, overly general, and poorly written (e.g., they address obvious issues of corruption such as quid pro quo but tend not to be designed to prevent corruption, such as strong fi nancial disclosure provisions; see Mackenzie and Hafken 2002; Tolchin and Tolchin 2001).

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A key external factor in designing or reforming ethics commissions is ensuring that there are standards of compe-

tence that would be diffi cult for an elected offi cial to manipulate.

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Table A1 Robustness Checks Using Models with Only Budget per Mandated Activity and Only Staff per Mandated Activity

Model 3 Model 4 Model 5

b boot s z Sig. b boot s z Sig. b boot s z Sig.

(Intercept):1 2.585 0.786 3.287 ** 2.955 0.764 3.870 *** 4.420 0.681 6.488 *** (Intercept):2 1.598 0.781 2.046 * 1.973 0.759 2.598 ** 3.445 0.674 5.109 *** (Intercept):3 0.372 0.776 0.479 0.746 0.756 0.987 2.197 0.668 3.289 ** (Intercept):4 –1.509 0.774 –1.949 –1.136 0.753 –1.508 0.354 0.664 0.533 Budget per mandated activity 1.379 0.280 4.931 *** 1.167 0.265 4.396 *** Staff per mandated activity 0.108 0.053 2.031 ** 0.205 0.051 4.048 *** Legislature’s appointment authority –4.209 0.411 –10.238 *** –4.199 0.408 –10.292 *** –3.764 0.406 –9.260 *** Governor’s appointment authority –1.955 0.302 –6.480 *** –1.900 0.301 –6.313 *** –1.631 0.297 –5.487 *** Removal power –0.257 0.051 –5.015 *** –0.249 0.050 –4.929 *** –0.284 0.051 –5.566 *** Independence of budget 0.191 0.182 1.047 0.340 0.156 2.181 ** 0.091 0.182 0.499 Economic interests 0.400 0.132 3.030 ** 0.492 0.128 3.834 *** 0.331 0.131 2.519 ** Average state income 0.000 0.000 –3.250 ** 0.000 0.000 –2.886 ** 0.000 0.000 –4.168 *** % Dem. or strong Dem. 3.062 0.940 3.257 ** 2.461 0.877 2.805 ** 3.240 0.939 3.449 ** Legislature is monitored x Leg. appointment Legislature is monitored x Gov. appointment Legislature is monitored Mandated activities alone

Z Levels: * 1.960 (0.05); ** 2.576 (0.01); *** 3.291(0.001).

Residual deviance 128.712 128.871 129.784 AIC 154.712 152.876 153.784 BIC 178.484 174.819 175.728 Log-likelihood –64.356 –64.438 –64.892 LR test versus saturated model 3.382 7.541 6.632 DF 171 172 172

Model 3 is the full model from the text. Model 4 shows that the coeffi cients do not change signifi cantly when staff per mandated activity is removed; likewise, model 5 shows that the coeffi cients do not change signifi cantly when budget per mandated activity is removed. This indicates that model 3 is robust to these changes, and the fact that staff per mandated activity is signifi cant in model 3 but not model 2 is a function of the functional form of fi nancial capacity and that this form is preferred.

Table A2 Robustness Checks Using Full Model with Interaction Terms and Model without Budget or Staff Variables

Model 6 Model 7

b boot s z Sig. b boot s z Sig.

(Intercept):1 0.223 0.823 0.271 3.523 0.775 4.548 *** (Intercept):2 –0.925 0.820 –1.127 2.549 0.769 3.314 *** (Intercept):3 –2.318 0.820 –2.828 ** 1.316 0.764 1.723 (Intercept):4 –4.327 0.823 –5.259 *** –0.543 0.759 –0.715 Budget per mandated activity 1.224 0.284 4.316 *** Staff per mandated activity –0.126 0.065 –1.949 Legislature’s appointment authority –1.974 0.637 –3.101 ** –3.948 0.405 –9.743 *** Governor’s appointment authority 1.470 0.514 2.856 ** –1.762 0.301 –5.850 *** Removal power –0.074 0.056 –1.324 –0.266 0.050 –5.294 *** Independence of budget 0.751 0.203 3.699 *** 0.221 0.155 1.426 Economic interests 0.664 0.139 4.789 *** 0.388 0.126 3.076 ** Average state income 0.000 0.000 –2.750 ** 0.000 0.000 –3.533 *** % Dem. or strong Dem. 1.729 1.033 1.674 3.013 0.872 3.456 *** Legislature is monitored x Leg. appointment –2.384 0.929 –2.565 ** Legislature is monitored x Gov. appointment –3.991 0.668 –5.975 *** Legislature is monitored 3.653 0.309 11.821 *** Issues alone 0.107 0.045 2.391 *

Z Levels: * 1.960 (0.05); ** 2.576 (0.01); *** 3.291(0.001).

Residual deviance 122.798 129.526 AIC 154.798 153.526 BIC 184.056 175.471 Log-likelihood –61.399 –64.673 LR test versus saturated model 13.618 6.891 DF 168 172

Model 6 shows the coeffi cients when adding the interaction terms for monitoring the legislature, and model 7 shows the coeffi cients when only accounting for the mandated activities per commission without regard for staffi ng of budget.

Appendix

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