Scoppe: Is the ethics bill worth passing? It depends

Associate EditorMay 31, 2014 

— AFTER more than two years of public hearings and politicians’ promises and private and public debates, the ethics reform bill is in conference committee, where three representatives and three senators will negotiate the difference between the House and Senate plans.

I had planned to provide a comparison at this point of the House and Senate bills, spelling out which version was better on each of the score of important provisions, and recommending changes where neither was sufficient.

Instead, I find myself asking this question: Can anything be salvaged of what was supposed to be the centerpiece accomplishment of the 2013-14 General Assembly?

If legislators aren’t willing to give up their power to police their own compliance with the law — which would require not only for the Senate to come around but also for the House to alter its unworkable solution — then should they bother passing anything at all?

And what if they remain absolutely unwilling to make it absolutely clear that a judge was hallucinating when he said the attorney general needs legislators’ permission to prosecute them for profiting from their office?

Are we better off to take what we can get — likely disclosure of legislators’ sources of income and closing some loopholes in our campaign-finance reporting laws — and come back next year to try again for enforcement?

Or will that allow legislators to do what they always do with controversial issues: Boast that they have passed ethics reform when they have not, and doom any efforts for real reform for years or decades to come?

Key elementsstill missing

Clearly, the House has no interest in rewriting the law to clear up whatever ambiguity Circuit Judge Casey Manning found about the attorney general’s constitutional authority to prosecute legislators; no one even proposed that during the House debate last month.

And while Senate leaders are outraged by the Manning Loophole, they’ve concluded that it would be inappropriate to act now rather than giving the Supreme Court an opportunity to overturn the decision. Which we should be able to assume it will do. And which I hope it will do.

Clearly too, the Senate has no interest in changing the routine oversight procedure, whereby the Senate and House Ethics committees receive secret complaints against senators and representatives and decide in secret whether to investigate them and, if so, what to do as a result.

The House bill creates an independent oversight commission that would review complaints against all government employees and elected officials — including legislators and even judges — and report its findings to the House or Senate Ethics committee or the State Ethics Commission or the judiciary’s disciplinary office.

But it doesn’t make any sense to include the judiciary in this plan: Judges must obey an entirely different (and more stringent) set of ethics rules than legislators, governors and everyone else in the political branches. Having one commission serve as the first line of investigation for both ethics systems is asking for mistakes, at best.

Representatives did reject a plan to put legislators and judges on that commission, agreeing instead that the Legislature and the Supreme Court would appoint private citizens, as would the governor. That was an essential improvement, which makes it possible to turn this into a workable plan: The conferees simply need to strike the references to the judiciary.

Whether the House members will be willing to do that is another question: It depends on whether they’re serious about independent enforcement or just trying to look like they’re serious about it.

One clue might be whether they’re willing to give up their provision that gives seven of the governor’s nine appointments to the Ethics Commission to the state’s constitutional officers. Yes, you read that right: The agriculture commissioner would appoint a member of the Ethics Commission, as would the education superintendent and the adjutant general, and all of those other people whom we elect only because the framers of our post-Reconstruction constitution wanted to make sure that if a black man somehow got elected governor, he wouldn’t be able to do anything.

House members aren’t afraid of a black governor, but they’re apparently just as determined to make sure the governor can’t act like a governor.

This is where we need to step back and recall why we have an ethics law. We have an ethics law to reduce the chance that lawmakers will put their personal interests or the interests of their employers or business partners or campaign donors ahead of ours. We do this by requiring them to report potential conflicts of interest, and by outlawing the behaviors that most clearly put their interests ahead of ours, and by putting in place a system to detect and punish violations.

For more than two years now, our legislators have been promising to improve our ethics law, which does not require enough disclosure, does not prohibit enough self-serving actions and does not provide serious enough enforcement. And just when we thought our Legislature couldn’t get any less interested in making sure that whatever law they pass is enforced, Judge Manning blew up the ultimate enforcement mechanism, declaring that the attorney general can’t prosecute legislators for profiting from office unless they give their permission, through their self-policing Ethics committees.

Some good reforms

So, back to that first question: Is our legislators’ work product worth salvaging?

Two or three years ago, I would have been overjoyed to get the disclosure provisions and the campaign-finance reforms in the two versions of H.3945. Even today, they are good reforms.

Most legislators will obey the new disclosure requirements regardless of enforcement, because most people obey the law simply because it is the law, and our legislators are no different.

Those requirements will tell voters who pays legislators’ salaries or hires their companies or pays their spouses and business partners — information that will help us determine whether our legislators are working for us or for their patrons.

The reforms to the campaign-finance law apply far beyond legislators, to candidates for statewide and local offices and to political action committees and other special interests that try to influence our votes. They all fall under the jurisdiction of the State Ethics Commission, which doesn’t have the fox-guarding-the-henhouse problem of the House and Senate.

Those reforms close long-ignored loopholes, for instance making it more difficult for candidates to hide embarrassing donations until after the election, and restoring reporting requirements for special interests that were wiped off the books by a 2010 federal court order.

And the Senate bill increases criminal penalties for the most serious violations, which should make elected officials think twice before violating the law. That is, if anyone decides to enforce the law.

It also requires legislators and statewide officials to file the bank statements of their campaign accounts with the disclosure reports. That will make it easier to catch misreporting of donations and expenditures, which should make it a little more dangerous for officials to try to get away with that.

Of course, the House bill doesn’t have either provision. And in the case of converting campaign funds to personal use, rather than increasing the penalty, the House gives candidates a get-out-of-jail-free-card, allowing them to repay up to $2,000 without penalty if they get caught.

There might be a place for limited immunity for accidental violations of the law. For some violations. If it were paired with tougher penalties and independent enforcement.

But it’s hard to justify granting even limited immunity for the very crime the attorney general is investigating the House speaker for possibly violating on a much larger scale. In a bill that doesn’t increase any penalties, and doesn’t turn routine investigations over to an independent entity, and doesn’t give enforcers additional tools to catch violators.

There’s stilla chance

That difference, as much as any, illustrates the importance of the conference committee’s work. The conferees might not be able to answer the existential question of whether we’re likely to get a better deal next year, but they will determine whether what we end up with in H.3945 is worth having.

They can make it a lot easier to say no, by making the wrong choices — by weakening the current law rather than strengthening it, by adopting ideas that sound good but won’t work, by opting for the least-transparent option available and refusing to bend on independent oversight.

They also can make it easier to say yes. The simplest way to do this is adopt the House’s independent investigative panel — minus the judiciary. This won’t close the Manning Loophole, but it would solve the most significant problem we had before Judge Manning’s order —- an order that the Supreme Court could and should reverse in a few weeks.

This would be an extremely hard sell in the Senate, and I suspect that a lot of House members who voted for the unworkable plan would oppose this now-workable plan as well, but take such a bill back to the House and Senate, and the equation suddenly would change. This would be a straight up-or-down vote, and our legislators couldn’t hide from it.

Would they really be willing to reject a bill that allows an independent commission to investigate complaints against them? Would they really be willing to reject a bill that gives that commission the tools it needs to figure out whether they’ve broken the law?

And if they are, how are they going to explain that to the public? And if they are, who are they really representing? Because it’s not the public.

Reach Ms. Scoppe at cscoppe@thestate.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.

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