House Version of “Ethics Reform”: Smoke & Mirrors

SH.3945 HAS GIVEN LAWMAKERS FAR TOO MANY
OPPORTUNITIES TO DO BAD THINGS

The House version of the “ethics reform bill,” H.3945, approved this week, is a beautiful example of why ethics reform shouldn’t be done in an “omnibus” bill. Put simply: omnibus bills give lawmakers too many chances to insert regressive measures and too many ways to kill the whole thing.

One key aspect of ethics reform the bill attempts to change is the ability of lawmakers to police their own criminal ethics violations. Like the version that passed the House Judiciary committee, the bill devolves the investigatory powers of the House and Senate Ethics Committees and the State Ethics Commission to a new “Commission on Ethics Enforcement and Disclosure.” This commission would have the power to investigate members of all three branches of government, but the power to punish would remain in each branch’s jurisdiction.

According to the version that originally passed the House Judiciary Committee, the newly made commission would consist of four lawmakers, four governor appointees, and four judges chosen by the Supreme Court. On the House floor, the member selection provision of the bill was amended to make it appear that the legislature was giving up power. As amended, the four members chosen by the legislature cannot be public officials (they themselves can’t be on the commission). While this might be slightly better, House members amended the governor’s selection provision so that the governor’s appointments are subject to the advice and consent of the General Assembly.

In sum, the House ethics bill went from including a new investigatory commission in which the legislature had direct influence over two-thirds of the members (four lawmakers and four judges who are elected by lawmakers) to including a new commission in which the legislature has influence over all 12 of its members. The legislature would now appoint four members, approve the four gubernatorial appointees, and still have ties to the judicial appointees (in the amended version, the four Supreme Court appointments can’t be judges of a court of record, although they would still have ties to the legislature if they were elected in the past).

This new structure wouldn’t be much different than the current system. Lawmakers would still have direct control over who investigates them, and they would still be the ones to punish each other.

Another change: the bill’s supporters, apparently still under the illusion that the governor has “too much” power, altered the State Ethics Commission appointments to include only two gubernatorial appointments, with the additional appointments coming from the State Treasurer, the Comptroller General, the Attorney General, the Adjutant General, the Secretary of State, the Commissioner of Agriculture, and the State Superintendent of Education.

Moreover, the House bill includes a new study committee to identify and recommend which specific ethics violations should be considered criminal and which ones civil.

Perhaps the most important reason these types of “omnibus” bills are dangerous is that lawmakers can sneak in provisions that work against the ostensible purpose of the bill. Take, for instance, the House Judiciary version’s “Speaker Protection” provision. It defines lawmakers’ “official responsibilities” as they pertain to campaign fund spending to “include” political party events, official appearances, meetings for which reimbursement is not offered by the governmental entity, and educational forums or conventions to which an officeholder is invited in their official capacity. In short, lawmakers could spend campaign funds on pretty much whatever they want.

The provision was slipped in at the subcommittee level, the full committee did nothing about it, and so it passed the full House with nary a word of objection – even though it’s manifestly intended to offer the House Speaker preemptive protection against an ongoing grand jury investigation.

The bill’s next step will likely be a conference committee, assuming the Senate votes to not concur with the House’s newly amended version.