The conduct of parliamentarians has not escaped the anticorruption community’s attention. Ethics codes and parliamentary immunities are everywhere being examined to ensure legislators adhere to the highest standards of conduct and can be held to account if they do not. In Costa Rica, for example, reform-minded parliamentarians recently launched an effort to determine whether their legislative ethics code and immunity rules, unchanged for several decades, need revision.
As a first step, the parliament’s in-house research center prepared a fine summary and analysis of legislative codes of conduct and member immunities in selected European and Western Hemisphere nations. To follow up, I met with reformers to discuss what issues to weigh when amending ethics codes or revising parliamentary immunities. The English PowerPoint Slides for my presentation are here, the Spanish version here. Points emphasized during the discussion:
* Conflict of interest. Don’t copy the conflict rules in force for executive branch employees. They are limited by the scope of the individual’s employment – to defense, transportation, or whatever. Barring defense ministry personnel from holding stock in arms manufacturers or transportation ministry staff from owning stock in companies that make buses is straightforward. But parliamentarians vote on matters that affect every corner of the economy. Should they be allowed to vote on matters that directly impact their personal economic interests? Or, at the other extreme, forced to divest themselves of all economic interests to avoid any conflict?
Enforcement. Who should decide whether a legislator has violated an ethics rule? Will a decision exonerating a parliamentarian be credible if it is rendered by a parliamentary ethics committee? On the other hand, if responsibility is vested with a court or other independent body, is there a risk that legislative independence will be compromised?
Immunity. Closely related to the enforcement issue is the question of legislative immunity. Smarting from the Stuart monarchy’s enlisting the judiciary to curb parliament’s power, in 1689 Britain’s House of Commons decreed that no member could “be impeached or questioned in any Court or Place out of Parliament” for anything said during legislative debate. Costa Rica is one of many nations that has expanded that limited immunity to protect legislators from prosecution for anything they say or do anywhere absent the consent of two-thirds of the legislature. Is such broad ranging immunity necessary today to protect legislative independence? Or should Costa Rican legislators consider whether, as article 30 of UNCAC urges, a balance be struck “between . . . immunities . . . and the possibility . . . of effectively investigating, prosecuting and adjudicating” corruption?
Lobbying. Lobbying is fundamental to the democratic process; the essence of democracy is that citizens have the right to be heard. It is also an area ripe for abuse as repeated scandals in democracies North and South, rich and poor underscore. To curb some of the grosser abuses, or at least bring them to light, the trend is to require lobbyists to register, disclosing who has hired them and whom they have lobbied (see here and here). Those who lobby the United States House or Senate must also disclose all political donations to legislators, and Chile requires not only lobbyists for private interests but those for state-owned corporations and even government entities, such as the armed services, to file disclosure reports. In what appears, at least to this writer, to be a first, Chile’s 2014 lobbying law mandates too that the lobbyist’s target — a minister, legislator, mayor, bureaucrat — must disclose who lobbied them on what. (English summary of law here.)
When undertaken in the aftermath of scandal, under intense pressure from voters to act NOW, legislative ethics reform can produce unwelcome and untoward consequences. Parliamentary reformers in Costa Rica are right to initiate the process while the parliamentary waters are calm and reasoned deliberation possible. Their nation’s citizens and their fellow parliamentarians should back the effort wholeheartedly.
GAB | The Global Anticorruption Blog 
Thank you for this post, I found it very interesting, and think it is particularly important that Costa Rica is pursuing these reforms in a proactive way, rather than merely waiting for scandal to strike. This seems most conducive to allowing reasonable discussion about what measures are truly necessary (rather than risk over-reaction than can come with reforms made under the glare of the spotlight).
I am curious about the basis for the immunity provision currently in law. The current system intuitively strikes me as very broad–I also would wonder if such an extensive degree of immunity is truly necessary. However, I would be interested to know more about the relationship between the legislative and other branches of government. Has the executive or judicial branch shown any tendency to target legislators who act unfavorably? Is there a risk that other branches may use prosecution as a tactic against their legislative rivals? This is the main justification I could envision for such a system of immunity, but perhaps it is not applicable in this context.
The other question that I have is whether there should be particular provisions made for parties in Costa Rica’s reform. I confess that I don’t know much about the Costa Rican political system or the problems of corruption in this country, so this may not be relevant. However, I could imagine that party organizations could play a significant role in facilitating parliamentary corruption, or at least cover it up where it occurs. What mechanisms would you recommend that parties take to address parliamentarians’ corruption? Does liability for parties make sense in the Costa Rican context?
I don’t know where the expansive immunity so many legislatures like Costa Rica enjoy originated. I imagine arose from the same fears that sparked the limited immunity the House of Commons was granted in 1689 — fear of executive control through abuse of its power and the power it wields over the judiciary.
Costa Rican parties apparently exercise some power over their members’ ethical conduct. In 2007, an internal ethics committee within the National Liberation Party temporarily suspended a lawmaker from serving in the Legislative Assembly pending the outcome of a criminal investigation on extortion charges. I asked how effective such a party disciplinary action was and was told that the problem was that there was no way to enforce them The member could simply ignore the sanction and the party was powerless to do anything. Strikes me that such an approach is well worth exploring though.
In Brazil, parliamentary ethics codes have been presenting low level of effectiveness in countering corruption. For instance, only three parliamentarians have had their mandate revoked by Congress due to the widespread systemic corruption uncovered by Lava Jato investigation. The main reason for this phenomenon seems to be the fact that these rules are enforced by the congressmen themselves.
On the other hand, Brazilian parliamentarian immunities are not as extensive as Costa Rican ones. In Brazil, congressmen are immunized from punishment only for opinions related to the performance of legislative functions. There is no need of previous consent from Congress to investigate, prosecute, and sanction parliamentarians for corruption and other common crimes. However, if the offense was committed during and in relation to their current mandates, all the prosecution steps against congressmen must be taken before the highest (federal or state) court. That’s what is called “privileged jurisdiction”, which has been considered as the cause of considerable delays in this kind of proceeding.
Finally, Brazil does not have rules about lobbying yet. The Chilean experience appears to be a good model.
Thanks for the information on Brazil. Enforcing parliamentary ethics codes admits of no easy solution. Self-enforcement is obviously a challenge as it asks legislators who work with one another on a daily basis and may depend upon each other for support to dispassionately judge one another.
Delegating enforcement to a court or independent agencies has its risks. Not only pressure to bend to the will of another entity but the possibility that the entity, staffed by non-politicians, will apply an inappropriate standard (see the post titled Conflict of Interest and Democratic Theory: Lessons from Bruce Cain’s Democracy More or Less for an example).
Both the U.S. House of Representatives and the British House of Commons have tried a hybrid approach. An office within the body staffed by independent personnel investigate but the body is the final judge of a violation. In both cases, that has its problems as the investigative body lost the confidence of members.
Anyone who knows of a fourth option, one with no downsides, please let me — and the parliaments of the world — know.
Because I have done a bit of research and writing on the issue with an American perspective, the immunity and the impeachment threshold questions raised by this post are particularly interesting to me.
First, the immunity question. I would think that if you removed immunity altogether partisan and frivolous investigations (along with the meritorious ones) might completely grind the legislature to a halt. But complete immunity prior to impeachment is the other side of the problem. With a 2/3rds threshold, it will take a very rare set of actions for an entire party (or set of parties) to turn against a legislator and risk losing that seat a rival party in the subsequent election. As you suggest, perhaps broadening the set of investigatable/prosecutable offenses is the simplest solution here and would erase the quandary posed by messing with the impeachment threshold (discussed below). The only problem with this approach is that as the scope of legislative immunity is reduced, the number of potentially frivolous or partisan investigations or prosecutions might increase. So the sweet spot is hard to find.
Now, the impeachment question. This is both trickier and easier. On the one hand, the benefit of keeping a broad immunity for legislators is that there is no risk of partisan investigations, but to make them more vulnerable to removal one would need to lower the impeachment threshold. In this case, the same forces driving partisan investigations/prosecutions would simply drive up the number of impeachment proceedings as the party in the majority would use its voting strength to remove members in the minority it did not like. Perhaps one solution is not to make impeachment by a simple majority but still less than 2/3rds. That way moderates from both parties would be the controlling set of votes. But the trick here would be finding the right ratio. Another sweet spot that is hard to find.
Perhaps one solution here would be to take a bit of both. Expand the number of impeachable offenses, and only slightly reduce the number of votes needed to impeach a legislator. Add to this approach some sort of ethics/investigations committee that would bi-annually release a report of its investigations and assessments for the entire legislature. That way legislators in swing districts might be more inclined to impeach members of their own party who the committee finds to be corrupt, lest they find themselves accused of defending corruption. This name and shame incentive coupled with a slightly lower impeachment threshold might be sufficient to remove legislators who abuse their office.