GOP

When Ethics Violations Are as Bad as Breaking the Law

Exhibit A: North Carolina’s speaker of the House and his sneaky veto override.
by Kim Wehle
September 13, 2019
Featured Image
North Carolina House Speaker Tim Moore.

There’s a lot of “he said, she said” going on over the North Carolina House of Representatives’ surprise vote on Wednesday to override Democratic Governor Roy Cooper’s veto of the state budget. The question being tossed around is: Were Democrats misled by Republicans into believing that no votes would take place at 8:30 a.m. on the anniversary of the 9/11 terrorist attacks? 

Democrats who missed the vote claim yes—that they were duped into thinking that the session was just pro forma, so they could reasonably miss it and do things like attend 9/11 memorial events. Republican House Speaker Tim Moore says that no such promise was made, and that the blame is on Democrats for not showing up for work.

The North Carolina House has 120 members, with the Republicans holding a 65-55 majority. Only 67 members were on the floor when the controversial vote took place—enough for the necessary quorum of 61. With 64 people voting, a three-fifths majority of those present—or 40 votes—was needed to override the governor’s veto. The override passed 55-9. Although the vote had been on the calendar since July 9, it wasn’t called by Moore until September 11.

In theory, had all 120 members been present, a veto override would have required 72 votes, meaning that 7 Democrats would have had to join Republicans to restore the state budget that Cooper vetoed. Although the veto override won’t now take effect unless it’s mirrored in the state Senate (which needs only one Democratic defector to pass), much damage has already been done.

Was the North Carolina Republicans’ maneuver illegal? Probably not. Was it ethical? Again, probably not. 

A 6-year-old kid knows instinctively that what the Republicans did was unfair and maybe even sneaky. Cooper told MSNBC that, legislators spent the summer making sure they’d be present for that important vote—even going so far as to change vacation plans and reschedule chemotherapy treatments. This fracas is but a small slice of the vast “unethical pie” that American politicians are serving up with impunity these days. And it’s a serious problem.

As I wrote in a column earlier this week, in the U.S. Senate, the timing and calling of legislative votes is not determined by the Constitution or even by laws passed by Congress. They arise from an amalgamation of ad hoc practices and procedures which, in hands of Senate Majority Leader Mitch McConnell, have functioned to supersede the will of the people as expressed by the rest of Congress. He refuses to bring bills—and Supreme Court justice nominees—to the Senate floor if he sees no political benefit for himself and his party. 

As with Moore’s stunt in North Carolina, McConnell’s procedural outmaneuvering is not obviously illegal. But it’s not ethical, either. Ours is a representative democracy, whereby elected officials are sent to Washington, D.C., or their state capitals to represent their constituents: the people. And our country of laws does not stop at written rules enshrined in the letter of the Constitution, statutes, regulations, or decisions by judges. It’s held up by unwritten values and norms, as well. 

Few people realize that most of what we call “American values”—such as the opportunity for financial success and upward social mobility, justice, humility, rewards for hard work, cultural diversity, and unrestricted individualism— appear nowhere in actual law or in the Constitution. They are part of a social contract that supports our legal, professional, political, social, and familial institutions. If a person wears smelly, sweaty gym clothes to an opera, he won’t go to jail—but he will face the “stink-eye.” The mere threat of social disfavor keeps most of us adhering to norms of proper behavior.

In the legal world, ethics matter even more expressly. Many government officials take an oath of office and—unlike the president of the United States who is (theoretically) only constrained by the Constitution’s Emoluments Clause from accepting “gifts” from foreign officials—ethics laws prevent government workers from engaging in self-dealing or even the appearance of self-dealing. For lawyers, there are lengthy codes of professional responsibility that impose ethical norms on the steely eyed realization that it’s human nature to act badly. The medical profession has them, too. Sometimes, these codes are enforceable through revocation of professional licensing, but many—like the media’s code of conduct—are self-policing.

Likewise, a violation of American values and norms cannot be enforced in court. A plaintiff probably cannot successfully sue Moore, for example, and get an injunction requiring him to hold another vote on the veto override—one that would properly reflect the will of the people by enabling debate and consideration by a fuller slate of democratically elected representatives. The fallout must come—if at all—in some other form.

In the aftermath of Moore’s “gotcha” maneuver, North Carolina Democrats warned that Republicans will feel the impact in the next election. In the interim, there’s no doubt that mutual trust has been blown, making it difficult—if not virtually impossible—for Democrats to do business with their political counterparts on behalf the voters of North Carolina.

I regularly warn my law students that they’ll need to decide for themselves how they’ll do business in practice. Brass-knuckled, scorched-earth tactics can win battles—sometimes even in court. But that approach comes at the high price of a reputation for dishonesty and even trickery. In the long run, it’s integrity that wins the war for our humanity.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).