THE ETHICS legislation the House is set to take up today is much improved from the disaster that House leaders had hoped to pass last week.
Gone is the decriminalization of ethics-law violations that derailed the first too-quickly cobbled-together and insufficiently vetted proposal. Gone too are a half-dozen nibbling little problems that evidenced too little attention to detail and perhaps some bad-faith efforts by some lawmakers — though we can’t say who since they were written in secret.
This is a fairly clean bill — which we’ve all had since Thursday to review — that accomplishes much of what it needs to accomplish: It requires legislators to report all the sources of their income and more fully refrain from participating in decisions that could affect their income; it cuts from 20 to two days the pre-election blackout period, when we can’t find out who donates to candidates; it requires PACs and other non-candidate committees to report how they spend money on campaigns, and where the money came from; and it ends legislators’ role as the sole enforcers of legislative ethics compliance.
But it still doesn’t give ethics enforcers the tools they need to encourage compliance and root out violations. And it still doesn’t increase penalties. To the contrary, it raises the bar for criminal prosecution, by adding a requirement that violations be “willful and knowing” — which sounds reasonable, until you review case law, and realize that means prosecutors must prove an evil or corrupt motive. Which they don’t have to do now.
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House Republican Leader Bruce Bannister, the point man for the ethics proposal, told me he has no desire to make it tougher to prosecute serious crimes. He simply wants to make sure people aren’t prosecuted for innocent mistakes — which also sounds reasonable, until you realize that no one has been prosecuted for innocent mistakes in the two decades we’ve had a law without the “willful and knowing” requirement.
You might forgive skittish legislators for feeling the need to add that extra layer of protection in exchange for opening themselves to scrutiny from an independent enforcement agency. Except that in this new version of the legislation, they’re not.
While they no longer would be the sole enforcers, legislators still would play a huge role in judging each others’ ethics compliance: A joint House-Senate committee would be composed of four senators, four representatives and eight members of the public, chosen by legislators.
Adding some non-legislators is a step in the right direction. But it’s a baby step, made by a particularly tiny baby.
Nor is it a step that was truncated out of constitutional necessity, as some legislators want us to believe; this was purely a matter of House members being unwilling to subject themselves to an independent authority. The argument put forward last week — that letting the governor appoint some of the members of the panel somehow amounted to an unconstitutional delegation of legislative authority, and that last week’s Supreme Court ruling against the governor somehow made this clear — is insulting. That ruling wasn’t about the Legislature delegating authority. It was about the executive branch stealing authority that the Legislature never relinquished. The only reason anyone could make the argument with a straight face is that nobody reads Supreme Court orders. Or understands separation-of-powers doctrine.
Mr. Bannister acknowledges that the reconfigured ethics panel is not ideal. But he argues that having an equal number of senators and representatives, of Democrats and Republicans and of legislators and laymen should inject a new dynamic that will prevent the committee from doing what we all fear it does: Cover up serious misdoing.
Mr. Bannister said he probably could have gotten a better enforcement mechanism through the House if that were the only issue at play. “But those folks who say ‘I don’t like the structure’ have a host of other issues to raise with the bill,” he said. “Even if they lose on this issue, they can make the bill die with other amendments.”
That’s what happens when legislators face public pressure to do something they are determined not to do, for which there is no acceptable justification for inaction: They resort to sabotage. They load the bill up with the toughest reforms they can, knowing that will make it so odious that someone else will kill it for them. And it usually works. Which is why one of the foundational reforms — a reform House members have claimed allegiance to — suddenly seems to be off the table.
We shouldn’t have to settle for an enforcement committee where half the members are legislators; we shouldn’t have to settle for having any legislators on the committee. I’m not even sure legislators ought to appoint the committee. And we aren’t going to get independent enforcement unless the House is committed to it, because while Senate leaders might push the House for tougher disclosure rules, and perhaps even tougher penalties, Senate leaders never have been warm to dismantling their Ethics Committee.
On Thursday, Senate President Pro Tem John Courson pulled me aside to tell me he was determined to pass legislation that includes income-source reporting and requiring outside groups to report their campaign spending; notably absent was independent enforcement. Twice in the past two weeks, he’s pointed out to me how aggressive the Senate Ethics Committee has become.
And it has been, relatively speaking. Earlier this month, it issued its third major complaint in three and a half years, this one against Sen. Robert Ford. Like the two against then-Sen. Jake Knotts and Sen. Kent Williams, it appears to have been instigated by the committee itself. The panel is indeed doing a good job. On those cases we know about.
That, of course, is the problem. We don’t know whether legislators are being as aggressive as they ought to be on all cases — or as aggressive as some of them obviously fear an independent watchdog would be.
Ms. Scoppe can be reached at firstname.lastname@example.org or at (803) 771-8571; follow her on Twitter @CindiScoppe.