The day after the House Judiciary Committee voted to let an independent ethics commission handle complaints against legislators, Rep. Rick Quinn was telling me about his plan, which seemed to be garnering support, to improve the model: Instead of laymen who would just do whatever the staff suggested, he wanted hearing officers for commissioners. It would be a far more aggressive move toward a truly independent enforcement program than anyone had been talking about.
My, how things have changed.
By day’s end, of course, the whole ethics proposal had blown up. It turns out that in return for turning enforcement over to an independent entity, House leaders had decriminalized the ethics law. It became clear that this was the trade-off when the new version of the bill came out last week: Crimes were crimes again (although they would be more difficult to prosecute), but the Legislature was back in charge of policing its own actions.
Rather than House members judging House members’ compliance with the law and senators judging senators’ compliance, as they currently do, the bill that passed the House last week gives that job to a joint committee made up of four House members, four senators and eight members of the public, chosen by legislators.
That’s less bad than the current arrangement, because senators likely would be a little less inclined to forgive representatives’ transgressions and vice versa. (I’ve not been impressed with the value of adding members of the public to boards dominated by elected officials; they tend to follow the elected officials’ lead.) But it’s such a dramatic and disappointing pullback from where the House seemed to have been going that it demands that we step back and examine where we are — and where we need to go.
Our goal should be to have an enforcement mechanism that takes ethics violations seriously, and punishes them accordingly.
We have no reason to believe that happens now, because legislators decide whether their colleagues have done anything that even needs to be investigated — a compromising position to begin with because they need their colleagues’ votes in order to advance their own political agendas — and they do it in secret. It’s a crime for people to even acknowledge that they’ve filed an ethics complaint.
The ideal solution is to eliminate the secrecy, and give the job of enforcing the ethics law to people who aren’t legislators, and who aren’t beholden to legislators.
Legislators reasonably argue that we don’t generally know about all those people who are investigated by police but not charged, and we shouldn’t know about politicians either; so that has never been on the table. And a lot of legislators honestly believe that the constitution prohibits an executive-branch agency enforcing legislators’ compliance with the ethics law, and a lot more don’t have a clue or a care about the constitution but are happy to wrap themselves in a respectable argument. In any event, the Senate has never been warm to that idea, and the House’s utter rejection of it means it’s not going to happen.
But when we strip away our emotional attachment to the idea of an independent enforcement agency, we discover this surprising bit of good news: While it might be the cleanest way to achieve our goal, it’s not essential, at least not in the way we’ve been thinking about it.
Consider: What if we had an independent entity that investigated complaints against legislators? And what if that independent entity made a public report of its findings? The complaints that were found to be without merit would remain secret, but we could have some confidence in the body that was determining whether they had merit or not.
Members of the House and Senate Ethics committees still would decide whether and how severely to punish their colleagues, but we wouldn’t have to worry that complaints had been covered up. If anything, the committees might become more aggressive, just because their members would be worried about voter backlash if they refused to deal seriously with the recommendation of an independent investigative agency.
That, essentially, is the plan that the Senate ethics-reform subcommittee has adopted. It would change the composition of the Ethics Commission — the governor would appoint half the members instead of all of them, with the Legislature appointing the other half. The commission would investigate complaints, and could initiate its own complaints; if it found probable cause, it would make a public report to the House or Senate Ethics committee and, if it involved a criminal matter, to the attorney general. What happened next would be up to the legislative committee.
Sen. Wes Hayes, who has chaired both the House and the Senate ethics committees and was a key architect of the current law, would prefer to transfer all ethics enforcement to an independent entity, but he believes that requires a constitutional amendment, and he sees no chance of getting the two-thirds vote in the Senate to do that. He thinks this solution is the next best thing because, he told me last week, “I think it would be difficult for the House and Senate committees to sweep something under the rug after there’s been a public finding of probable cause.”
Sen. Chip Campsen, who wrote this proposal, sees no chance that the Senate would go along with the House plan, and calls his plan “the only direction that I can ascertain that has a real shot at passing the Senate.”
That of course is important, because the best plan in the world is worthless if it can’t become law. But usually the plan that can pass is a serious compromise from what ought to pass. This time, maybe not.
Ms. Scoppe can be reached at firstname.lastname@example.org or at (803) 771-8571. Follow her on Twitter @CindiScoppe.