Legislature Passes ‘Independent Investigation’ Bill
THE GOVERNOR HAS SIGNED IT, BUT VERY LITTLE HAS CHANGED
In 2012, the Policy Council began calling for the abolition of the legislature’s power to police its own members’ ethics violations (see reform no. 5). Currently, of course, House and Senate ethics committees have the power to adjudicate members’ ethics cases, keep the information secret until a determination of probable cause is made, and issue non-public “advisory opinions” to members on questionable ethical practices – as if these committees were empowered to issue judicial interpretations of the law.
In the intervening four years, multiple bills have been introduced to reform the system, but these bills have almost invariably attempted to rearrange the current system – not to eliminate the ethics committees altogether and place state lawmakers under the same criminal law as everyone else.
This year, the legislature batted one “independent investigation” bill back and forth all throughout session – H.3184 – then passed it during the sine die period. In this legislation – now ratified and signed by the governor – ethics complaints go to a reconstituted Ethics Commission, which would make a recommendation to the relevant House or Senate ethics committee of whether probable cause exists or not. That recommendation would be made available to the public. But although the Ethics Commission would investigate lawmakers, final decisions on guilt and punishment would remain with the legislative ethics committees.
Currently the governor appoints all members of the Ethics Commission, although they cannot be removed by him or her at will. Under the new arrangement, the governor will appoint four commissioners, the House will appoint two, and the
Senate two. The legislature will confirm the governor’s appointments, thus giving lawmakers the upper hand in the Commission’s overall makeup. In effect, then, the bill places authority to investigate ethics violations with a notoriously understaffed agency, then establishes legislative control over that agency, all while leaving the authority to punish or not punish lawmakers
firmly in the hands of lawmakers.
The bill’s supporters in the legislature claim that it establishes “independent investigation,” but the Ethics Commission’s investigations will explicitly not be independent, and lawmakers on the ethics committees will still be free to let their friends and colleagues off the hook if they so choose.
The solution to this problem is not necessarily a simple one in execution, but it’s simple in concept. The 1991 Ethics Act creates a host of special “ethics laws” specifically for elected officials, and many of these laws govern criminal behavior. But politicians should be subject to the same criminal laws everybody else lives under: embezzlement, for example, should be embezzlement and not downgraded to “converting campaign funds to private use” simply because the offender is a politician. Rather than rearranging the Ethics Commission, then, lawmakers should simply (a) abolish the House and Senate ethics committees – thus removing their powers to police themselves – and (b) place the Ethics Act’s criminal violations under the criminal code while leaving non-criminal violations (missing filing deadlines and so on) with an independent agency such as the state Election Commission.
In any case, let’s be clear about this: Under this new law, legislators will still police themselves.