Senate Ethics Bill Would Take Reform Backward

MEET THIS YEAR’S GIANT ‘ETHICS BILL’

The legislative session has only just begun, but somehow lawmakers on the Senate Judiciary Committee are already poised to pass an omnibus ethics reform bill. Subcommittees met in December and January – before the legislature was even in session – to assemble the bill, S.1. Now Sen. Larry Martin, the committee’s chairman and the bill’s lead sponsor, seems determined to get the thing out of his committee.

The committee is scheduled to vote on the bill this Tuesday, Jan. 20, in Room 105 of the Gressette Building at 1:00. Experience suggests that it’s no good sign when legislative leaders rush large, complicated bills through the committee process, so we thought we’d better take a closer look at this one.

Here’s what we found.

Legislative self-policing

Current law: Lawmakers get to judge each other’s ethics violations via House and Senate Ethics Committees.

Senate bill: Lawmakers are still permitted to police themselves.

The bill reconstitutes the State Ethics Commission into an eight-member commission with four gubernatorial appointments and four legislative appointments (two non-lawmaker nominations by the Speaker and two by the Senate President Pro Tem). This doesn’t even give the appearance of addressing the problem of self-policing – that is, of lawmakers policing their own ethics violations.

  • Ethics complaints against lawmakers would still be filed with the House and Senate Ethics Committees and would only then be referred to the State Ethics Commission for an initial investigation.
  • Even after the State Ethics Commission determines a violation has occurred, the House and Senate ethics committees retain the power to investigate and punish their own members for violations of the Ethics Act.
  • Current law does not put any limitations on the documents that can be released after a determination of probable cause. S.1 would keep all documents secret except the complaint itself, a response by the subject of the complaint, the notice of hearing, the commission’s findings, the final order, and the exhibits introduced at the hearing cited in the final order.

This doesn’t eliminate the legislature’s ability to police and enforce their own ethical behavior. Worse: it actually enhances legislative power by adding four legislative appointments to the State Ethics Commission. The legislature, in other words – via legislative appointments to a newly constituted Ethics Commission – would get new powers to investigate other statewide elected officials while remaining subject only to an “initial” (not full) investigation by the Ethics Commission. In short: it’s another legislative power grab.

Secret permission to bend the law

Current law: Lawmakers can get de facto permission from House and Senate Ethics Committees to engage in ethically doubtful activities.

Senate bill: That practice is formally legalized.

Under House and Senate rules, lawmakers can solicit “advisory opinions” from their House or Senate Ethics Committees before they engage in ethically questionable behavior. If they receive the committee’s go-ahead – permission, basically – they have cover for whatever it is they wanted to do. S.1 would make this practice state law. Not only that: members of the ethics committees could vote to keep these opinions confidential – i.e. unavailable to the public. This practice of secret advisory opinions ought to be abolished, not enshrined in state law.

Recusal from conflicted decisions

Current law: Recusal required for any decision potentially involving personal gain.

Senate bill: Recusal required for only some of those decisions, not all.

Current law is clear: lawmakers may not “make, participate in making, or in any way attempt to use his office, membership, or employment to influence a governmental decision in which he, a family member, an individual with whom he is associated, or a business with which he is associated has an economic interest.” While lawmakers pretend to strengthen this provision by specifying what type’s of participation is not allowed and what is, the practical effect would actually weaken the sweeping recusal provision on all matters where a lawmaker may have a conflict.

Further, lawmakers often ignore the clear language of current law and fully participate in conflicted activities right up until a vote is cast. This bill would have the effect of codifying that practice and thus weakening the current law.

Income disclosure

Current law: Lawmakers have to disclose nothing of their private income, but do have to disclose public income.

Senate bill: Lawmakers would have to disclose private income, but loopholes provide ways around the requirement. And the disclosure requirements on public income would be loosened.

Simply put, lawmakers should disclose everything from which they earn an economic benefit – whether sources of public and private income or relationships with regulated entities. If they find there are areas of their careers they would rather keep secret, they shouldn’t run for public office.

Current law requires that the money elected officials make from government contracts be reported, including the amounts. S.1 would free officials from even that modest provision by requiring only the disclosure of direct payments to the business or individual who holds the contract. So, for instance, if a lawmaker makes large amounts of money by winning cases before the (state) Workers’ Compensation Commission, he would only have to disclose that his firm earns the money, not that he does.

There are too many exemptions for reporting private income, too. In addition to exemptions for income from court orders and brokerage accounts, S.1 specifically exempts income received from consulting with lobbyist principles as long as they are paid at fair market value (see 8-13-1120)(11).

Disclosure of PAC money

Current law: PACs must disclose expenditures.

Senate bill: Disclosure requirements for PACs would be loosened via the “major purpose” loophole.

The bill redefines “committee,” “noncandidate committee,” and “ballot measure committee” as, among other things, one that has as its “major purpose” the support of or opposition to political candidates or ballot measures. In order to meet that major purpose criterion one of the following must be true of the committee: its bylaws state that its major purpose is to elect candidates or promote or defeat a ballot measures; more than 50 percent of its disbursements go to support or oppose candidates or ballot measures; or its public statements, fundraising solicitations, etc., indicate that supporting or opposing candidates or ballot measures is its major purpose.

It would appear, then, that as long as the group avoids these three criteria, it isn’t a PAC and doesn’t have to abide by any of the regulations governing PACs – including reporting requirements. So if a PAC keeps its expenditures on direct electoral advocacy under 50 percent, and if its bylaws and other literature remain vague enough, it doesn’t have to disclose anything about anything. It can go dark. While federal courts have ruled in favor of the major purpose doctrine in the past, there is no federal or state court decision supporting the right of entities that spend money on direct electoral advocacy to keep their contributions secret. Under this law, PACs would have this unsupported right of non-disclosure.

More scrutiny for non-political citizen groups

Current law: Non-partisan, non-political groups are not required to disclose their donors; political action committees are.

Senate bill: Forces non-electoral advocacy groups to disclose top donors.

While lawmaker-aligned PACs can go dark under S.1, non-partisan advocacy will received increased scrutiny.

The bill broadly defines “electioneering communications” as virtually any public communication within a 60 days of a general election and 30 days of a primary election and has the ability to reach a specified number of people. This broad definition would force many non-political groups to disclose their top donors – an easy way to silence issue-oriented groups that aren’t involved in elections. This means that, with some exceptions, if you’re an issue-oriented organization that doesn’t engage in elections but happens to mention a candidate’s name before an election, you may have to disclose your donors – potentially exposing them to intimidation from politicians and their allies who don’t appreciate their message.

Other potential problems

Current law requires that written promises or pledges to make campaign contributions be reported in campaign reports. This bill would eliminate that requirement. The bill bans the use of campaign funds to pay penalties resulting from criminal prosecution. But it permits elected officials to use campaign funds to pay fines resulting from criminal charges. Campaign funds should be used for campaign purposes only – period.

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