September 16, 2009
Ethics in the Evening
Attending an event on the Brown campus, a blogger knows that he's attending an event on the Brown campus. Entirely unaccountable suit jackets . Very professorial-looking people. (I hope nobody breaks into my van after the sun goes down.) Also, the seats have folding desktops. When I was a kid...
I'm not sure whether this Common Cause RI panel on the future of the Ethics Commission will lend itself to liveblogging, but if I have an wry... or insightful... comments, I'll be sure to share them.
7:08 p.m.
Probably about 50 people here. I called ahead back when I first heard of this event. There's seating for another 100 people or so, and given the importance of the topic, events such as this really ought to be packed. Ensuring that they are might be a worthwhile sideline for tea-party goers.
Just sayin'... and it's not just a plea for a higher percentage of suit-jacket-less audience members.
7:15 p.m.
Ethics Commission attorney Jason Gramitt is explaining the background, and he just explained that straight-out bribery remains illegal. A legislator cannot take money explicitly for an official act. The importance of the Ethics Commission (Gramitt explained) is that it addresses ethical violations that aren't so clear cut. In a sense, the commission goes after implied bribery. Or used to.
7:32 p.m.
Ethics Commission Chairwoman Barbara Binder, following ACLU lawyer Mark Freel's argument that the Speech in Debate Clause is important to preserve, pointed out how obvious it is that the law gives the Ethics Commission authority over the only substantive practice of legislators.
She also tied the judges' decision to privilege Speech in Debate with the whole notion that now-Supreme Court Justice Sonia Sotomayor would bring a specific perspective to her rulings.
7:43 p.m.
One opinion: Too many lawyers on the panel, although that might speak to the intentions of the event. A politician and an analyst/advocate/commentator would make things more interesting and pick up threads where lawyers prefer not to dare to tread — e.g., what do we do from here.
7:48 p.m.
Mr. Freel makes a reasonable point, though, about following the procedure if one wishes to amend the state's constitution, rather than just assuming that legislation accomplished it implicitly.
7:54 p.m.
Actually, we've moved on to the "what to do from here" segment. Common Cause's John Marion (not a lawyer) is describing a proposed amendment to the state's constitution that would empower the Ethics Commission — and just the Ethics Commission — to overcome the speech in debate clause.
8:02 p.m.
Very odd. RI Senate Parliamentarian John Roney, amidst various digs at the Ethics Commission and its lawyers just challenged the validity of Barbara Binder's appointment to the office, given a lack of advice and consent from the legislature. He's also arguing that further empowering the Ethics Commission is contrary to ideas of separation of powers.
Why redirect from the topic of the evening? Curious. The politics never end, I suppose.
8:08 p.m.
Sometimes lawyers proceed with the arguments in such a way that an obvious point appears to be irrelevant. The point of separation of powers is not that each branch is protected from the others, but that each branch performs duties appropriate to its role in government. The Ethics Commission may be an executive-branch office, but the question vis separation is whether it is performing a legislative function. It is not. Arguably, it is performing a judicial function, but it is created within the state constitution to do what it does.
8:14 p.m.
Freel just argued that there is also a "court of public opinion" and such other forms of super-legal regulation. It's important not to forget (especially in Rhode Island) that it often takes an Ethics Commission suit to spur public opinion.
8:26 p.m.
You know, you never see any interesting ties at these events. Is paisley verboten? If I ever join such a panel... and wear a tie... I'll break with tradition.
8:32 p.m.
Event Moderator and Brown Professor of Public Policy (and Ethics Commission member) Ross Cheit closed the meeting with an expression of gratitude that the panel and audience could break with the zeitgeist and conduct a civil discussion. People are challenging the notion of civility in such forums, he claimed. Nonsense. People are challenging the civility owed to elected government officials simply because they are government officials.
Senator Roney made a point of bringing the "you lie" controversy into the discussion, and the allusion is entirely inapplicable. This was an academic forum. A panel discussion of experts. The town halls have been constituent events hosted by politicians for political purposes. President Obama turned his healthcare speech into a political opportunity to attack his opposition.
Am I crazy to see a bit of snobbery in the peculiar self congratulations, tonight?
I had planned on attending tonight’s panel, but an unanticipated deadline interfered with those plans. Perhaps there will be a recording made available either through common cause RI or some other content provider?
In any event, though I think the Supreme Court’s decision in this case is quite likely dangerous and disruptive jurisprudence (“first in time” has never, in my recollection, been a valid cannon of constitutional construction when faced with conflicting constitutional provisions, particularly when the amendment was designed specifically as a check on a preexisting power), I do wonder, from an institutional design standpoint whether an appointed, unaccountable body with primary legislative, executive, and quasi-judicial authority to enforce its own view of “ethical behavior” is consistent with the democratic process or the separation of powers. Maybe I am just hyper-sensitive to the notion of leaving the enforcement definition and enforcement of “ethics” to a roving band of unelected burecrats. Moreover, I recognize that to some extent these problems are present in all modern administrative agencies. However, the Ethics Commission’s constitutional grant of primary legislative authority (though concurrent) means the traditional problems stemming from a lack of political accountability are particularly acute for the Ethics Commission.
I do not express these concerns to suggest that nobody ought to be able to exercise the authority the state constitution appeared (at least prior to Irons) to vest in the Ethics Commission. Rather, I merely wonder whether these powers might (ironically) be less susceptible to political capture and manipulation if the legal obligations we, as a society, sought to impose on our elected officials in the ethical arena, were made subject to control by more directly democratically accountable bodies.
Justin, I was drafting my comment above and didn't realize that you were still at the panel. A quick clarification about the ethics commission's powers may help to contextualize my argument above, as well as the argument from the Senate's legal counsel that the ethics commission impinges on seperation of powers. In In re Advisory Opinion to the Governor(Ethics Commission), 612 A.2d 1, 11-12 our supreme court declared,
"[I]t is abundantly clear that the framers expressly intended to limit the General Assembly's power to enact substantive legislation regarding ethics. Rather, their primary intent was to empower the commission with the authority to develop a code of ethics, to investigate violations, and to enforce its provisions. . . ."
In other words, at least with respect to ethics, it is to the Commission and not to the General Assembly that our constitution delegates the authority to legislate. Also it is importiant to keep in mind that at the time the ethics commission was adopted, in 1986, Rhode Island's seperation of powers was weaker than any other state in the union. As such, it may have made sense to create an appointed super legislature with authority over ethical matters. Since then, however, with the passage of the seperation of powers amendment, the doctrine has been strengthened and it may be time to reconsider the best institutional mechanisms to enforce the people's ethical will.
Posted by: Matt at September 16, 2009 9:51 PM"Very odd. RI Senate Parliamentarian John Roney, amidst various digs at the Ethics Commission and its lawyers just challenged the validity of Barbara Binder's appointment to the office, given a lack of advice and consent from the legislature."
Yes, that's called a change of subject. Apparently, ethics in government does not interest the gentleman. Let's hope he is not reflecting the attitude of his boss.
Posted by: Monique at September 16, 2009 10:47 PMMatt, the event was taped by Operation Clean Government and will be shown on their "State of the State" program. Common Cause will also try and put their footage on www.commoncauseri.org just as soon as they figure out how to do something like that.
Posted by: John at September 17, 2009 10:10 AMThanks for the update John.
Posted by: Matt at September 17, 2009 1:30 PMWith all due respect, you do not understand the concept of civility if you think that people need to earn the right to be treated civilly.
Posted by: Civilly yours at September 22, 2009 9:04 PMOr perhaps we merely have different concepts thereof. Note my language: "people are challenging the civility owed," not "whether civility is owed." A political rally calls for quite a different etiquette than an academic forum, and what people are challenging is the notion that a political leader deserves (for instance) the degree or form of civility appropriate to the latter even when engaged in the former.
One could argue that, in the case of President Obama's speech, it was he who introduced the lowered threshold for civility with his various political attacks.
Posted by: Justin Katz at September 22, 2009 9:12 PM