Shruti Shah: Introducing the Coalition for Integrity’s S.W.A.M.P. Index

After a summer of hard work, I am pleased to present Coalition for Integrity’s Index of States With Anti-Corruption Measures for Public officials (S.W.A.M.P.). 

As the 2018 elections approach, we want voters to understand the “state of ethics” in their state so that they can better evaluate candidate platforms, demand improvements in their state’s legal framework and judge proposed reforms. 

State officials can see how their state’s ethics framework compares to those in other states and these officials also have access to a description of best practices to draw from.

There is a link between a strong ethics regime and the public’s trust in government and state laws are often the first line of defense against corruption. While we recognize that good laws are not enough to prevent corruption, and enforcement is key in curbing unethical practices, a strong legal framework can serve as a guidepost to ethical decision making and a brake on corrupt behavior.

The S.W.A.M.P. Index analyzes the laws of the 50 States and District of Columbia on eight questions relating to the jurisdiction and scope of ethics agencies, the powers of those agencies, acceptance and disclosure of gifts by public officials, transparency of funding independent campaign expenditures and client disclosure by legislators.  These eight questions are:

1. Is there an ethics agency, with the authority to conduct its own investigations, including public hearings and subpoena power?

2. Does the ethics agency have the ability to sanction, including personnel actions, injunctions, and fines?

3. Are the members of the ethics agency protected from removal without cause?

4. Are elected and appointed executive branch officials and legislators prohibited from accepting gifts from high-risk sources (lobbyists, lobbyists’ principals, government contractors) in an aggregate of $250 or more?

5. Are elected and appointed executive branch officials and legislators prohibited from accepting gifts from persons other than high-risk sources in an aggregate of $250 or more?

6. Are elected and appointed executive branch officials and legislators required to publicly disclose gifts that they receive?

7. Does the state require reporting of contributors to independent spenders?

8. Do legislators have to disclose client names as part of their financial disclosure
reports?
    
To create the S.W.A.M.P. Index, the Coalition for Integrity team produced detailed reports for all 50 states and the District of Columbia. Each report contains answers to the eight questions and cites and links to relevant statutes and regulations. The 50 states and D.C. were assigned scores for each question using our scoring rubric.  The index uses a scale of 0 to 100, where 100 is a perfect score.   

Some of the key findings are:

• No state has achieved a perfect score and in fact there is no state in the top 20th percentile.

• 36 states scored 60 or below and 21 states scored 50 or below. For example, New York scored only 56 and Virginia’s score was 35. (Comparatively, below 60 is a failing grade in most school systems).

• Three states Washington (78), Rhode Island (75) and California (75) land at the top of the score chart.

• Two states that scored very poorly, New Mexico (36) and North Dakota (0), are voting on ballot initiatives in the November 2018 election to create independent ethics agencies.

There is wide variation in state laws and regulations on ethics and transparency issues. Some of the research results on the individual questions surprised us too: 

• Five states (Arizona, Idaho, New Mexico, North Dakota, and Wyoming) have no independent ethics agencies whatsoever.

• Only two states receive full credit on both Questions 1 and 2 (Louisiana and Rhode Island) which deal with the jurisdiction and powers of ethics agencies.

• With respect to prohibitions on gifts (Questions 4 and 5), only three states receive a perfect score for those questions, highlighting the wide variation that exists in gift laws at the state level.

• There are 19 states that received a score of 0 for the question on gift disclosure which means they do not require public disclosure of gifts for the executive and legislative branch regardless of the source.

• Client disclosure is an important way to determine whether a legislator has a conflict of interest in matters in which he or she acts or refrains from acting.  However, on question 8 regarding client disclosure, 17 states received partial credit and only one state got a perfect score.

• On campaign disclosure, only a few states address the issue of dark money contributed through anonymous limited liability companies and social welfare organizations.

• Overall the rules for the executive branch are stronger than those for the legislative branch.

Based upon our research and with the help of our experts on the Project Advisory Committee, we have set forth the minimum legal framework for promoting ethical behavior and transparency:

• All states should have an independent ethics agency with jurisdiction over the executive and legislative branches and that agency needs wide powers to investigate and sanction all government personnel.

• Legislators should be subject to the same treatment as elected executive branch officials and employees. In states where legislatures have a separate ethics entity, it should be independent of the legislature, composed of members of the public and not legislators.

• Gift rules should apply equally to all government officials and should prohibit all gifts above a reasonable threshold, regardless of the source and regardless of the intent of the recipient or the gift-giver.

• Legislators should disclose the names of all clients for whom they work, whether the client directly hires the legislator or hires the entity which employs the legislator.

• States should take the lead in mandating disclosure of the beneficial owners of LLCs and donors to 501(c) organizations which contribute to independent campaign spenders.

We have developed an interactive webpage for our readers to provide an easy way to access the report and individual state reports. Users can click on the various states and download the research findings for that particular state. In addition, users can easily access our research materials including the scoring rubric, index scoring chart and overall state rankings, the methodology note and the final report with our findings and analysis.

Access our overall report here (pdf).

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Shruti Shah is a Contributing Editor of the FCPA Blog and the President and CEO of the Coalition for Integrity (formerly Transparency International-USA), where she leads the Coalition’s development and promotion of approaches to combat corruption in business and government. She can be contacted here.