When Legislators Flout the Law

First a question.  Do you think that part of the oath that a legislator (federal or state) takes upon being sworn into office includes “upholding the law?”  The answer, shockingly, is no.  Congressmen, for example, swear to uphold the constitution, but there’s nothing about upholding the law.  Neither is upholding the law part of their defined responsibilities.

I guess the reason is that all citizens are supposed to obey and uphold the law, even if they disagree with it.  So legislators have no heightened responsibility to uphold the law.

Let’s go further with this.  Should legislators be expected to uphold the spirit of the law ... that is, not act in such a way that clearly flouts the intent of the law?  The average citizen certainly does not have this responsibility.  If there’s a way around the law, it’s a citizen’s time-honored right to take it.

I would argue, however, that it is a legislator’s heightened responsibility not just to uphold the law ... the letter of it ... but to uphold the spirit of the law.  Let me discuss two recent examples of what happens when they don’t.

In 2007, after a scandal involving junkets payed for by lobbyists, Congress passed a law prohibiting lobbyists from giving Congressmen gifts of just about any value.  The offending junkets were taken by Congressmen, typically to resort locations, where they would play and talk with the sponsoring lobbyists, obviously with the intent of influencing the Congressmen with regard to legislation or regulation that affected the interests of the lobbyists.

So what did lobbyists and their Congressional friends do?  They came up with a way to achieve the same end but not violate the letter of the law.  Junkets are now funded by PACs controlled by the Congressmen which are in turn funded by money collected from lobbyists or the corporations they represent.  Since the lobbyists are not paying for the junkets directly, there is no violation of the law!

A recent article in The New York Times documents how Congressmen, mostly but not all Republican, flout the intent of this law.   Should Congressmen be able to legally do this?  Should they at least be subject to an ethics violation?  When there is knowing violation of the intent of the law, I think the answer to both should be, yes, but certainly at least to the latter.

The other instance involves the response of various states to a series of recent decisions of the U.S. Supreme Court that limit the use of life sentences without parole for juveniles.  The underlying reason for these decisions is that children, even those who commit murder, are often less culpable than adults and deserve a chance at redemption.  

But states including Florida, Louisiana, Illinois, and Pennsylvania have gotten around the spirit and intent of these decisions either by piling on sentences that amount to life without parole or refusing to apply the ruling retroactively to juveniles who are currently serving life without parole.  Even when some states have responded with rehearings on sentencing, the new sentences imposed have been harsh (in the Florida example cited, 50 years or more) and against the spirit of the decisions. 

It is a sad statement regarding the rule of law in our democracy that those elected to pass and, one would assume, uphold the laws flout their intent so brazenly.  

Ironically, the proponents of harsh treatment of juvenile criminals are typically conservative Republicans.  They are adamant that criminals must pay the price and that they should not be coddled, regardless their age.  And yet when it comes to their own activities, they have no problem in flouting the intent of the law while obeying the letter of the law.

It may be the American way, but it is a bad way.