The November Ballot: Question 2 – Ethics, ACLU Opposes Referendum

Rhode Island State House

WhatsUpNewp is  profiling each of the statewide referenda, in what promises to be a spirited election from the presidency to local public offices and local issues. ICYMI, here are two previous stories that we’ve published – The November Ballot: Question 1 – Tiverton Casino & The November Ballot: Question 2 – Ethics.

While it may appear that the ethics referendum on the November ballot has little opposition, a powerful group, the Rhode Island Chapter of the American Civil Liberties Union (ACLU), is claiming that passage of the referendum does little to curb Legislative mischief, and much to impair legislators’ ability to represent their constituents “fully.”

Passage of the referendum, the ACLU says, will eliminate the state Constitution’s Speech and Debate Clause, which the courts have ruled provides legislators with immunity over statements made in support of legislative matters.

The seven-year effort at ethics reform stems from a court decision several years ago that removed the legislature from oversight by the Ethics Commission, based upon the existence of the Speech and Debate Clause. At the core is the potential for conflict of interest.

“The clause is an important protection for elected officials from harassment for their debate and votes on controversial issues,” the ACLU says on its website. “This proposal could significantly impact their ability to properly represent their constituents and, more significantly, the ability of constituents to elect legislators able to represent them to the fullest.”

Proponents of the referendum suggest that the importance of brining the legislature back under the umbrella of the Ethics Commission is a matter of avoiding conflicts of interest.

The legislature, both the Senate and House, unanimously passed the Ethics Legislation, sending the issue (a Constitutional amendment) to voters on Nov. 8. Only the General Assembly has been exempt from Ethics Commission oversight among all elected and appointed government officials.

John Marion, Executive Director of the Common Cause in Rhode Island
John Marion, Executive Director of the Common Cause in Rhode Island

John Marion, Executive Director of the Common Cause in Rhode Island, a group that has worked for seven years to promote ethics reform, says the ACLU has consistently opposed the very existence of the Ethics Commission.

“The ACLU has always been opposed to the very existence of the Ethics Commission and their opposition is no surprise,” says Marion. “While they believe the Ethics Commission could restrict the behavior of elected officials, there is no evidence they will. The Commission has consistently rejected proposals the ACLU has cited.

“There is no First Amendment protection for those with conflicts of interest,” he says. “The U.S. Supreme Court ruled in 2011 in a 9-0 decision that legislators aren’t exercising their personal speech when they are legislating, but rather they are exercising power granted to them by the people.”

Asked about the impact of the court ruling, brought by former state Senator William Irons, that removed legislators from Ethics Commission oversight, Marion says there was a dramatic increase in conflict of interest situations following the court ruling.

“What we know is that when you compare the four years prior to the Irons decision to the four years after, there is a 40 percent decline in the number of times legislators recuse from voting in the state Senate, and a 60 percent decline in the state House,” he says.

The ACLU also contends that to get General Assembly approval, the proponents of ethics reform made a significant compromise by agreeing to a moratorium for filing ethics charges against candidates in the run-up to elections.

Marion and Phil West, the former Common Cause executive director, resisted the General Assembly’s efforts to include the moratorium in the legislation and referendum, maintaining that was not a matter for Constitutional change.

But they also agreed with legislators of the dangers of frivolous charges being made in the run-up to an election. The Ethics Commission then adopted rules that would prohibit the filing of charges of ethics violations against a candidate for office 90 days before an election.

Neither Marion nor West have suggested that the Ethics Commission’s 90-day prohibition was a compromise to convince legislators to approve the legislation, but instead agreed with Assembly leaders that there is a greater likelihood for frivolous charges being filed in the run-up to an election.

Such bans are not unique, according to the National Conference of State Legislators.

At least 11 other states impose blackout periods for filing ethics complaints, including Alaska, Florida, Georgia, Missouri, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia and Wisconsin.

An article on the NCSL web site says that “because a filed complaint entails at least a preliminary investigation, proponents of such laws say accusations of an ethical violation, if unfounded and frivolous, can destroy a campaign, especially when it comes too late to defend against it.

Have a thought on this? Comment below...