Sunday, October 25, 2009

Utahns For Ethical Government Attempting To Get Ethics Reform Initiative On The Ballot For November 2010; Oversight Or Overkill?

Fueled by legitimate concern over such practices as state lawmakers taking gifts from lobbyists, as well as more traditional concerns about allowing corporations and unions to contribute to individual election campaigns, a group called Utahns for Ethical Government (UEG) crafted a legislative ethics initiative and has launched a petition drive to get it placed on the ballot for the November 2010 election. They need 95,000 signatures by April 15th, 2010.

Key references for this post (hat tip to WCForum for some of the less prominent links):

-- Read the full 21-page initiative HERE
-- Read the executive summary HERE
-- Read a list of petition locations HERE
-- Read the list of prominent initiative supporters HERE
-- Read Sen. Lyle Hillyard's objections to the initiative HERE.
-- Read Rep. Lori Fowlke's detailed critical analysis of the initiative HERE (Note: this is HIGHLY recommended)
-- Read UEG's latest response to growing criticism HERE

The UEG's proposed ballot initiative establishes a non-partisan unelected citizen ethics commission and a strict code of conduct to govern the ethical behavior of Utah legislators. The intent of the initiative is to ensure that legislators apply high standards of ethical conduct and represent the interests of the citizenry rather than catering to narrower special interests. UEG believes Utah Legislature lacks sufficient self-discipline to police itself, and suggests it is time for citizens to help the Legislature by creating a fair, non-partisan, and open process for reviewing complaints of ethical violations by legislators.

The proposed five-person commission would receive and investigate complaints of ethics violations lodged by any three persons. They would make findings and recommend action to the legislature, using the initiative’s Code of Conduct as its standard. The legislature’s response to recommendations would be made public. The commission would also develop mandatory ethics training for the legislature. The three-person complainant rule is most intriguing and innovative; apparently it is designed to prevent the egregious abuse of the ethics complaint system perpetrated by Sarah Palin's political opponents in Alaska, who spammed the Alaska Personnel Board with a litany of nitnoid "ethics complaints" primarily for the purpose of waging political warfare against Palin. Under Alaska's system, any ordinary joker off the street can file an ethics complaint and then trumpet it publicly.

Another of the more necessary provisions is a ban on lawmakers accepting donations to their campaigns from corporations, non-profits, partnerships, and unions. Donations from such entities tend to tilt the balance overwhelmingly in favor of incumbents. Banning these types of contributions will tend to level the playing field and make campaigns more meritorious. The Utah State Legislature should enact such a ban independently of this initiative.

This issue is not necessarily "owned" by any single constituency. The list of supporters is occupationally and politically diverse, ranging from former Republican Governor Olene Walker to former Democratic gubernatorial challenger Bob Springmeyer. Even the notorious Salt Lake NAACP dominatrix Jeanetta Williams has signed on. In addition, there appears to be broad grass-roots support; During the period Sep 11-13, Dan Jones conducted a poll of 410 adults and found that 85 percent supported the proposed ethics initiative.

However, opposition to this initiative has already emerged. Two lawmakers, Senator Lyle Hillyard and Rep. Lori Fowlke, have already spoken up. Sen. Hillyard has identified a number of constitutional issues raised by this initiative, to include unconstitutional delegation of power, unconstitutional interference with legislative powers, unconstitutional vagueness and overbreadth violations, violations of the constitutional rights of individual legislators, substantive and procedural due process violations, unconstitutional violation of open courts provision, and unconstitutional violation of the single subject rule.

Rep. Fowlke presents a more detailed and cogent analysis. First, she reminds us that a number of ethics reform bills were passed in 2009, to include HB 345 (Lobby Restrictions), HB 346 (Campaign Report Amendments), SB 156 (Gift/Meal Provisions for Public Officials), which requires reporting of meals costing more than $25 provided to a public official under certain circumstances, SB 162 (Campaign Fund Use), which prohibits the use of campaign and officeholder funds for a purpose that would result in the candidate or officeholder recognizing the funds as taxable income under federal tax law, and HJR 14 (Ethics Training Course), which requires an annual ethics training course for members of the Legislature and lobbyists. Although these may merely be baby steps in the right direction, this tends to undermine UEG's contention that the legislature can't police itself.

While Rep. Fowlke agrees with a number of the UEG's recommendations, she cites the legislature's repsonse to an improper letter written to a judge by Sen. Chris Buttars as evidence that legislators cannot "get away with" using their official positions to threaten judges and agency heads & get employees of the executive branch fired for not ruling a certain way. She also disputes the UEG's contention that "legislators can spend campaign funds on non-campaign personal expenses", saying that the problem comes in coherently defining a "personal expense". She also criticizes the initiative for representing too many assumptions as "facts".

But the most powerful opposition may come from Governor Gary Herbert himself. On October 22nd, 2009, the Deseret News reported that Gov. Herbert opposes the initiative, saying "I think this initiative petition, despite the passion, the zeal and the good intentions of the sponsors, has got flaws in it". In addition to concerns with the petition language, the governor also questions whether it provides adequate due process for those accused of ethics violations. But Gov. Herbert still favors additional ethics reform in principle. The Deseret News also referred to the Governor's October 23rd KUED monthly news conference, the video/audio accessible HERE. Written transcript available HERE.

There is certainly nothing wrong with signing the petition. Signing it merely indicates you want to see it placed on the ballot, and not necessarily an expression of support. There is no reason why it shouldn't be placed on the ballot; a public campaign will unleash the healthy and robust debate over ethics necessary to come up with a solution that will effectively factor in reforms already enacted with the need for public accountability, while preserving the principle of the presumption of innocence.

But it should be obvious that this initiative is more than just "oversight"; it's also overkill. It would be using a sledgehammer to kill a mosquito. If it makes the ballot, the smartest vote is "No".

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