Protesting the Ethics Loophole at the Courhouse

I'll add a couple of pictures to Jim Baron's Woonsocket Call article on yesterday's oral arguments inside and protest outside of the Rhode Island Supreme Court, concerning the appeal of the State Ethics Commission's case against former Senate President William Irons. Last year, the State's Superior court threw out the Commission's conviction of Irons on the grounds that the official acts of state legislators, regardless of their motivation, cannot be prosecuted because they are protected by the State Constitution's speech-in-debate immunity clause...

Outside the courthouse, protesters, many from the watchdog group Operation Clean Government, held signs bearing slogans such as “Speech in Debate is not a License to Steal,” “Let the Ethics Commission do its job,” and “Don't kill ethics in Rhode Island.” It was two OCG members who filed the original ethics complaint against Irons.

“Are we going to have a double standard for the application of ethics in this state, or are all our elected and appointed officials going to be subject to the code of ethics?” asked one of the sign holders, Robert “Al” Benson. He said the speech in debate clause allows lawmakers to vote any way they like, “unless they use their vote to break the law.”

One argument discussed in Baron's article whose resolution is sure to impact the Court's decision in this case is the unique legal status of the RI Ethics commission…

[Ethics Commission Lawyer Jason Gramitt] pointed out that in a 1992 opinion, the court ruled that the 1986 constitutional change amounted to “an implied modification of legislative powers” because it gave the ethics commission the authority to write its own ethics laws that the General Assembly did not have to approve and could not change.

He asserted that such an “unheard-of grant of authority...is further evidence of the lengths that the drafters (of the amendment) and the voters felt they needed to go to change the landscape of government in the state of Rhode Island. There is no other state in the country since 1986 or currently that has that kind of system of legislating ethics in state government. It never existed until then and it still doesn't exist except here in Rhode Island.”

And Katie Mulvaney's coverage of the oral arguments in the Projo makes a brief mention of what I think is another central argument in the case…

[Justice William P. Robinson] asked Gramitt yesterday how he would deal with the fact that the law disfavors arguments that a law has been repealed by implication.

Gramitt said the 1986 amendment carved out a narrow exception to legislative immunity by expressly giving the commission authority to investigate and impose penalties against legislators.

This is important because, in the years before the passage of the Ethics Amendment, the United States Supreme Court had expressly declined to take a position on whether legislative immunity extends to laws narrowly tailored to regulate legislative conduct, and the idea that judges have an inherent authority to rewrite the plain meaning of Constitutional language that does not conflict with existing interpretations of the Constitution -- which is what the Superior Court did, when it decided that the State Constitution's Ethics Amendment does not fully apply to state legislators, despite text that says it is to be applied to "all elected and appointed officials" -- is an idea that replaces the rule of law with the rule of lawyers.

Further details on the Rhode Island Ethics Amendment and legislative immunity are available here, here, and here.