By Thomas H. Little, Ph.D.

My sixteen-year old daughter has played AAU basketball since she was nine years old so I have had the “privilege” of spending many Saturdays and Sundays on hard bleachers, in cramped gyms trying not to totally lose my composure (and religion) when the “stripes” missed an obvious foul against my little girl. For the most part, these tournaments tend to run together, with little to distinguish one from the other, as my daughter’s Greensboro Gaters usually won more than they lost, but seldom won the whole thing. However, while a few games stand out for great performances or really bad officiating, one stands out for something an opposing coach said during a time-out.

This was one of those games where the Gaters were playing very well and were off to a solid lead with several fast break baskets off of steals. As you might expect, the opposing coach was speaking rather loudly, so it was unmistakable when he emphatically reminded one of his best players, “Don’t do what you want to do, do what you ought to do!”

I was reminded of those words again as I read with dismay this morning that Sheldon Silver, the former Speaker of the New York State Assembly, was convicted on all seven charges brought against him by the federal government, including charges of honest services fraud, extortion and money laundering stemming from schemes by which he obtained nearly $4 million in exchange for using his position to help benefit a cancer researcher and two real estate developers. Prosecutors charged that in the first scheme, Silver arranged state grants of $500,000 to a prominent cancer doctor who in exchange directed legal business to a firm that had Silver on retainer. In the second scheme, it is alleged that Silver had two real-estate developers direct business his way in exchange for supporting legislation that would benefit them.

During the five-week trial, Silver never took the stand in his own defense and his attorneys did not argue that he had not committed the acts he was charged with. In fact, they argued that his actions were just the way politics in Albany has always been done (referred to in the trial as “Albanyisms”) and was the way that the Founding Fathers designed the system to work. The defense was that while the Speaker’s actions were wrong, they were not illegal. He turned the AAU coach’s advice on its head, “Do what you want to do, not what you ought to do.”

Since Silver and Senate Majority Leader Dean Skelos (trial pending) were indicted last fall, the legislative leaders that replaced them along with Governor Andrew Cuomo have gone back and forth over reforms designed to make legislators act properly. So far the efforts have resulted in few significant reforms. An article that came out in The New York Times immediately following the verdict against Silver suggested that even in light of Silver’s conviction, significant ethics reform still may not pass (“Cuomo Tempers Hope for Tougher Ethics Laws”) and he might be right. And it might not matter.

As long as some legislators are more interested in doing what they want to do than what they ought to do, it is not clear that stricter ethics rules will make a difference. Indeed, following Silver’s conviction, Cuomo said as much, arguing that New York’s ethics laws are stronger than they have ever been and suggesting that regardless of how strict the laws, “if a person is going to break the law, the person is going to break the law.”

This problem is certainly not limited to New York. It seems like almost weekly, a legislator is being investigated, arrested, indicted or convicted on one charge or another. In deciding how to vote or what to do, legislators can generally ask themselves one of the following: is it good for me?, is it ethical? and/or is it legal? All too often, legislators as well as other government officials give priority to their own interests or technical legality over ethical behavior. They assume that if something is good for them or is allowed by law, it is therefore appropriate behavior. Like Silver, they tend to hide behind the letter of the law while ignoring its intent.

The importance of this distinction among legality, personal interest, and ethics cannot be overestimated in light of a recent study that found when it came to rules and regulations, only three states scored higher than a D and eleven states received failing grades outright (like about half of the states, New York scored a D-). This study suggests that many things that most of us would consider questionable, if not unethical, are within the rules that govern legislative action, giving legislators much leeway within the letter of the law.

So, while Silver’s conviction and others like it across the country as well as the aforementioned ranking of state legislative institutions might spur states to adopt stricter reporting requirements, restrictions on outside incomes and better conflict of interest rules, these changes will not prevent “Albanyisms,” “Raleighisms” or “Austinisms” from dominating politics. In order to change the culture, legislative leaders need to adjust their decision making processes and “Don’t do what you want to do. Do what you ought to do.”