What the Idaho Legislature will do when it takes up the matter of an extramarital affair between two Republican lawmakers will push the body into uncharted waters.
Out there, on a sea of concern for institutional integrity, evolving public attitudes on morals bob alongside still-standing-but-seldom-enforced state laws against adultery.
Make no mistake: Both legislative houses will take it up — the circumstances make it unavoidable. The matter has gone public, with legal and moral questions put in play. What the public hears going forward, and how much, is another matter. As Kremlin-watchers in the days of the former Soviet Union would recall, the first and only sign that someone’s out of favor might be who misses the next parade — or in this case, loses a committee or leadership position.
The relationship between Nampa Rep. Christy Perry and Inkom Sen. Jim Guthrie became public in mid-August. A far-right conservative blogger, Lance Earl, who ran for the House in Guthrie’s district in 2014 and is a political opponent, wrote about it after interviewing Guthrie’s ex-wife shortly following the couple’s summertime divorce.
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Both lawmakers have issued vague statements that acknowledge a relationship and error in judgment. They’ve expressed regret and shame, sought forgiveness and disputed the reported facts. Neither has agreed to be interviewed, declining multiple Statesman requests. Both continue to seek re-election in races that, before disclosure, seemed pretty safe.
The leading question now, assuming they win re-election in November, is what political price will they pay, if any, for their indiscretion? And following on that, will penance be meted out behind closed doors — either by the full body politic or just their party — or via a public morality play worthy of Hawthorne’s “The Scarlet Letter”?
“It sounds like it will be become public record, because there’s nothing to really argue,” said Ethan Wilson, an attorney and policy specialist with the Center for Ethics in Government at the National Conference of State Legislatures. “It doesn’t sound like it’s the conduct that’s at issue here. It’s what’s the punishment.”
The two were cleared of any related misuse of public funds in a probe that legislative leaders promptly initiated after the affair became public. Yet they still likely face ethics questions when the Legislature reconvenes in January. Since one is a senator and the other a representative, there might even be two inquiries.
Prior ethics cases in the Legislature have seen lawmakers resign following investigation, hearing and censure. One senator was exonerated but lost his bid for re-election.
But those precedents involved clear-cut charges of official misconduct. The Guthrie-Perry matter does not. Nor is it like the case last year in Michigan in which two lawmakers were caught lying and misusing public funds to hide their tryst.
How much does the public really care these days about people and politicians who have affairs? Thrice-married Donald Trump published a book that described what amounts to serial adultery, and he’s the Republican candidate for president. Hillary Clinton’s marriage has endured a healthy share of outrages, courtesy of her husband. Voters don’t seem to see infidelity on its own as a disqualification for public office.
In the case of Guthrie and Perry, regardless of public attitudes, there is potential felony law involved. Here’s where things stand, what might trip them up, and where the chips might fall.
Both legislative houses have provisions on ethics in their internal rules. These codes are adopted with each successive session. The House seats a standing ethics committee at the beginning of each two-year term, while the Senate empanels one only as needed.
The rules in both houses set forth five causes under which an ethics complaint may be brought. Only a fellow lawmaker can bring one and it must be in writing. Only if the ethics panel finds probable cause that a violation occurred does the complaint, and any ensuing proceedings, become public.
Of the five causes listed in the each house’s rules, only two potentially apply here, and both are vague and subjective. They cite “conduct unbecoming” a representative or senator, and a violation of any state law or internal rule that discredits or embarrasses the body.
That’s one big side of a barn at which to aim. Given such an easy target, how could an opportunistic internal rival or moralizing critic — and the Legislature is home to both — resist filing the complaint? Additionally, lawmakers take to heart the reputational risk to the institution that inaction might represent.
“Anytime there is any misconduct by an elected official, it reflects on the whole body. In fact, it reflects on government as a whole to some degree,” Senate President Pro Tem Brent Hill, R-Rexburg, said this week. “Anytime we do anything inappropriate, even in our personal lives, it can have an effect on the body. At the same time, we all make mistakes, and our mistakes do reflect on our colleagues and the body.”
The law is the law. Or is it?
What’s more, adultery is still a crime in Idaho, as it actually is in 20 other states, including such liberal bastions as New York and Massachusetts. In most of those it’s classified as a misdemeanor. Idaho is one of five states where it is a felony.
The circumstances behind Idaho’s statute are unique. The current law dates from 1972, but that’s misleading. In 1971, the Legislature approved a sweeping rewrite of state criminal and penal code, only to throw it out wholesale the following year. The changes had, among other things, decriminalized consensual gay sex, and citizens were outraged.
The 1971 revision also removed the crime of adultery. In 1972, it went back in with the rest of the old code. The language is unchanged from its initial enactment in 1905. The maximum penalty instituted more than a century ago, and still on the books: up to three years in jail and the astoundingly high fine of $1,000 — about $26,000 in today’s dollars.
Adultery laws are rarely enforced, in Idaho or elsewhere. A Stanford law professor, Deborah Rhode, has written a book on them, and with Trump’s rise in the primaries, penned a timely LA Times column on the subject earlier this year. In it, she notes that social disapproval toward adultery has actually ticked up, even as legal sanctions against it have rolled back. At the same time, though, between two-thirds and three-quarters of Americans, when surveyed, don’t think it should be a crime.
“The law needs to catch up,” she wrote.
But not here, not yet. Idaho thus has two sitting lawmakers who violated state law in a liaison that public opinion, if reluctant to punish, still seems to condemn. It thus seems impossible for the Legislature to dodge the issue, even if lawmakers would rather do just that.
What does it mean, politically? Perry, seeking her fourth term, has been a rising star among House Republicans, entrusted with chairing the House Ways & Means Committee, the speaker’s vehicle to fast-track or kill legislation. Strongly pro-gun and conservative on matters of faith, she also has been outspoken in favor or public defense reform and expanding health care options for the working poor who can’t get coverage. She sits in the more pragmatic wing of the Republican camp. She ran unopposed in 2014 and the matter is not likely to be an issue in her re-election campaign now.
“I really would prefer to leave a personal thing like that out,” said Rita Burns, the Democrat running against her.
Guthrie, too, while not an up-and-comer in the Senate, is less ideologically driven, friendlier to business, and also more inclined to favor expanding health care for the poor. A former House member, he is seeking a third Senate term. He also ran unopposed in 2014, but this year faces Democrat Mike Saville.
“I’ve focused on my campaign, quite frankly. We’ve worked very hard before this came out,” Saville said. A career in business, he said, taught him not to disparage competitors.
But, he said: “I don’t see how a guy can do that and still represent 50,000-60,000 people and keep his mind on the issues. ...Voters have to look at that carefully.”
Whatever happens in January, political life might never be the same for either lawmaker.
“They probably won’t live this down for a long time, but I don’t know if their conduct rises to the point where they will be formally punished or disciplined,” said the NCSL’s Wilson.
More broadly, the matter might serve as the basis for renewed debate over creating a state ethics commission. Idaho doesn’t have one and is one one of states with weaker ethics provisions. Proposals for an office of Inspector General died both this year and last.
What they say
Sen. Jim Guthrie and Rep. Christy Perry have declined requests for interviews. They have each issued statements:
Perry (Aug. 18):
“I was once experiencing a profound crisis in my life. During that time I turned to a friend in the Legislature and ultimately made a terrible mistake for which I am truly sorry for. This occurred approximately two years ago and my husband was made fully aware of all details. Our decision was to face our problems head on. We have been actively seeking help and guidance for quite some time and are fully committed to our marriage of 23 years, our family and each other. It is our hope you can support us in our very personal decision. Unfortunately, someone has decided to use the past situation to launch a disgustingly brutal attack. Overall, it is NOT accurate and serves no positive purpose in the lives of the families involved or the political arena. I have worked incredibly hard in the Idaho Legislature for my district and the state. I will let my reputation, my work on policy issues, my voting record and work ethic speak for me.”
Guthrie (Sept. 9):
“Every once in a while you find yourself in a darned-if-you-do, darned-if-you-don’t situation. Comment, and risk putting legs back under an already painful news story; or remain silent, and leave those I serve as a member of the Idaho Senate wondering. I have decided, albeit somewhat tardy, to share some things with those I represent.
“For the most part the events that have unfolded over the past couple of weeks are private in nature and it is unfortunate that they have not remained so. Much of what has been written is inaccurate, unsubstantiated and outright lies. That said, I am not without fault and take my share of blame and responsibility and then some.
“I want those who elected me and all residents from southeast Idaho and beyond to know how profoundly sorry I am for any embarrassment my shortcomings may have caused. More importantly, I want my family to know how much I love them and how sorry I am for any grief suffered by them due to my lapse in judgment.
“I am a fortunate man and I am thankful for the many friends, acquaintances and family members who have offered their support and words of encouragement. I cannot adequately express how much those exchanges by phone, card, email or text have meant to me. It is that support that has carried me through a very difficult time.
“It is my intention to vigorously campaign for the retention of the Senate seat I currently hold. I am committed to continue working on the many important issues facing the Idaho Legislature including education, health care, economic development, tax policy, transportation and many others. I have enjoyed serving the citizens of Bannock and Power counties and would be humbled by the opportunity to continue in that capacity.”