Tuesday, May 26, 2009

For Removing the Straight Party Lever

The straight party lever is broken. The 19th century anachronism that allows voters to cast votes for all candidates of a single party is incompatible with our current optical scan machines. When voters pull the straight party lever in 16 cities and towns, they are not voting for some local races. This is a flaw in the ballot, and the only solution is to eliminate the straight party lever.

The Providence Journal has recently endorsed our position, and 16 cities and towns have already supported removing the lever. Join the movement today. Contact your legislators, and ask them to support removing the straight party lever.

Bipartisan Uprising: Drive for Fair Elections Gains Traction


ONE OF THE NICE things about living in Rhode Island is that there are genuinely good people here who strive to make the state better, in spite of everything arrayed against them — apathy, smears, an entrenched culture of corruption, powerful interests working every day to drain the state’s lifeblood.

Public-spirited citizens are now pushing for fair elections, and an end to the master lever, a legacy of corrupt machine politics that most states have rejected. These good people would like to see even-handed elections, ballots without technical flaws, a more responsive legislature and, all around, a better-run Rhode Island. And they are gaining impressive, bipartisan momentum.

Governor Carcieri, a Republican, has come out for ending the master lever, as has General Treasurer Frank Caprio, a Democrat (bravely, because he might benefit from the system in a general election). So has Warwick Mayor Scott Avedisian. In the legislature, Democrats, Republicans and — yes, the state Senate’s sole independent, Ed O’Neill — are also committed to this change.

And, as I write this, the town and city councils of 16 communities have passed resolutions supporting the reform: Charlestown, Coventry, East Providence, Exeter, Glocester, Lincoln, Little Compton, Middletown, Newport, New Shoreham, Portsmouth, Richmond, Smithfield, Warren, West Greenwich and Woonsocket. Several other communities have the matter on the agenda: Barrington, East Greenwich, Foster, Jamestown, North Kingstown, Pawtucket and Scituate.

Citizens groups are also fighting for the change, including Common Cause Rhode Island, Operation Clean Government, the League of Women Voters Rhode Island and the Rhode Island Statewide Coalition.

And the state Board of Elections, whose job it is to oversee fair elections, voted 3-1 in support of eliminating the master lever.

In most states, perhaps, it would not take such an outpouring of public concern to motivate legislators to do what is transparently the right thing: operating elections that are fair to all. In most states, such an outpouring would be more than enough to shame the laggards into action.

But moving our General Assembly to serve the common good is often a Herculean task. Some hearts are hardened against the public. Some legislators owe their power to a tilted playing field. Special interests who control legislators’ votes frown on the idea of genuinely competitive elections; they want to see their carefully cultivated members uncontested for re-election.

Thus, though it would surely have no influence on the balance of power, this reform is bottled up in the House and Senate judiciary committees, which have not yet seen fit to remove this stain on Rhode Island’s reputation.

The master lever is terminology left over from the days of voting machines. It let voters, by pulling one lever, elect all the Democrats or all the Republicans up and down the ballot. This was a bad idea then — people should actually vote for those they put in positions of power — but it is a worse one now.

Rhode Island uses paper ballots rather than voting machines (superior to the machines, because they leave a paper trail and make elections less susceptible to fraud). But the paper ballots, scanned optically, do not function the same way.

If a voter chooses the master-lever option on paper, voting for all Democrats, and then goes down to vote for, say, one Republican in a local council race with five positions open, the ballot will not “fill in” the other positions with Democrats. The machine will read the ballot as one vote for a Republican, and no other votes in the council race.

The old voting machines worked differently. An “X” appeared next to the name of every candidate selected (even through the master lever). An “X” could be moved to another party’s candidate without wiping out all the straight-ticket votes.

But the issue goes way beyond that technical glitch.

Straight-party voters may not know they are not casting a ballot in nonpartisan elections.

Worst of all, the master lever tends to give a huge advantage to members of the majority party, particularly well down the ballot, in races that would otherwise not draw as many votes. Independent and third-party candidates face a huge disadvantage.

That is obviously one reason for the overwhelming dominance of one party in the General Assembly. Many seats go uncontested because potential opponents do not believe they have a fighting chance. They start a race, in effect, hundreds of votes behind because of the advantage the master lever provides the other guy. The system is inherently unfair, a racket.

Needless to say, competitive elections are the lifeblood of any democracy. Without them, politicians heed the wishes of special interests and ignore the common good.

When Democrats gained power in New Hampshire, they got rid of the master lever, which for years had unfairly benefited Republicans.

Our state deserves fair elections and healthier governance, too. Our children deserve a better legacy than a corrupt system. The people to call are your legislators and their leaders: House Speaker William Murphy (401-222-2466) and Senate President Teresa Paiva Weed (401-222-6655).

Edward Achorn is The Journal’s deputy editorial-pages editor ( eachorn@projo.com).

Thursday, May 14, 2009

R.I. Supreme Court Hears Ethics Dispute

By Katie Mulvaney

Journal Staff Writer

Former Senate President William Irons leaves the courthouse Wednesday with family members and Vicki Almeida, right, one of his lawyers.

The Providence Journal / Mary Murphy

PROVIDENCE — An Ethics Commission lawyer told the state Supreme Court yesterday that Rhode Islanders were seeking to rid the state of rampant corruption when they passed a Constitutional amendment creating the commission more than two decades ago.

That 1986 amendment granted the commission clear authority to prosecute legislators and required that all elected officials, including the General Assembly, be subject to the ethics code, said Jason Gramitt, lawyer for the commission.

But Justices Francis X. Flaherty and William P. Robinson III noted that in passing that amendment, Rhode Islanders reaffirmed existing provisions of the Constitution, including the speech-in-debate clause at the heart of yesterday’s arguments.

With origins in the late 1600s and included in the state Constitution at its passage, the clause reads “For any speech in debate in either house, no member shall be questioned in any other place.”

It shields lawmakers from probes stemming from their votes or other legislative acts, said John A. Tarantino, lawyer for the former Senate President William V. Irons. “A legislator can be convicted of bribery but the proof can’t be the vote,” Tarantino said. “The vote is protected.”

The Supreme Court heard arguments yesterday in the Ethics Commission’s appeal of Superior Court Judge Francis J. Darigan Jr.’s dismissal of ethics charges against Irons. Darigan ruled in October that the speech-in-debate clause grants lawmakers legislative immunity.

Civil libertarians, clean-government groups and other observers packed the courtroom to hear the emotionally charged issue debated. About 25 people watched the proceedings on a big-screen TV in an overflow room as Irons sat in the front row with his wife and two daughters. Outside about dozen people carried signs saying “Don’t kill ethics in R.I.”

The Ethics Commission says that if the ruling stands, it will cripple its authority to police unethical behavior in the General Assembly. Irons has argued it is imperative to uphold the Constitution and that the commission would still have powers if the Superior Court’s decision is upheld.

Irons, who resigned from the Senate in 2003, appealed to the Superior Court after the Ethics Commission found probable cause that he had broken the ethics code by using his office for financial gain and voting on legislation in which he had a substantial conflict of interest.

As chairman of a committee that considers health-care issues, Irons had opposed controversial legislation CVS wanted killed to allow patients covered by Blue Cross & Blue Shield to get prescriptions filled at a pharmacy of their choice. It was later disclosed that Irons collected hundreds of thousands of dollars in commissions on a Blue Cross policy covering CVS workers and Operation Clean Government members filed the ethics complaint.

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.

Retired Chief Justice Frank J. Williams questioned Tarantino about what powers the commission would retain if the court upholds Darigan.

The commission, Tarantino said, could still police legislators’ actions involving contracts, dealings with the executive branch, and filing incomplete or false financial disclosure reports. “The two provisions can coexist,” Tarantino said. “One isn’t eviscerated by the other.”

There is nothing in history, Tarantino said, “showing that voters tried to abrogate speech-in-debate … [Voters] made a determination they still wanted that protection in the Constitution.”

Gramitt disagreed, saying the two clauses are contradictory and that voters wanted sweeping ethics changes. “One has to go.”

Irons also asked yesterday for the high court to find he is entitled to a trial, should the commission prevail. A trial must be granted, Tarantino said, if a similar charge existed at common law and at that time breach of public trust was an indictable offenses. Darigan had ruled Irons was not entitled to a trial.

Katherine D’Arezzo, commission lawyer, argued that courts are not bound to take on cases that could be decided administratively.

“Does it trouble you that he never gets a trial before an impartial body?” Flaherty asked D’Arezzo. “It’s before the body accusing him.” The line of questioning shifted before the reply.

The commission and Irons opposed Attorney General Patrick C. Lynch’s position that the court need not take up the Constitutional question, that it should instead address a 1999 Ethics Commission opinion advising Irons that his participation in pharmacy-choice legislation would not be a conflict of interest.

Flaherty led yesterday’s proceedings. Acting Chief Justice Maureen McKenna Goldberg recused herself because of her long-time friendship with Irons’ wife, Mary. Both families have homes in Matunuck.

Irons said afterward that he thought the four justices asked the right questions. His most poignant moment came, he said, when Justice Flaherty asked D’Arezzo about the fairness of the ethics process. “The silence was deafening,” he said, adding “my experience has taught me that due process is surely challenged in a structure like that.”

John Marion, executive director of Common Cause Rhode Island, said he hoped the outcome would support the commission. “I hope the decision is quick so we [and the legislature] can move on.”

All ethics complaints against legislators have been on hold since Darigan’s ruling.


Wednesday, May 13, 2009

Supreme Court Hears Irons Case

On May 13th, 2009, the Rhode Island Supreme Court heard arguments in William V. Irons vs. Rhode Island Ethics Commission. Common Cause weighed in with briefs in support of the Ethics Commission’s position that legislators are subject to the code of ethics, despite the “speech in debate” clause of the Rhode Island Constitution. Likewise Common Cause supported the position that Irons does not have a right to a jury trial. Read about the oral arguments here.

Sunday, May 10, 2009

Supreme Court Takes Up ‘Speech-in-Debate’ this Week

By Katie Mulvaney

Journal Staff Writer

PROVIDENCE — Rhode Islanders respond to scandal. In the 1970s, in the wake of Watergate, the General Assembly created a Conflict of Interest Commission intended to police lawmakers.

A decade later, outraged by a state Supreme Court chief justice’s resignation amid allegations of criminal connections, voters approved changes to the state Constitution that called for the establishment of its successor, the Ethics Commission.

Now more than two decades later, the state Supreme Court will hear arguments in a case that some charge could profoundly alter the Ethics Commission’s ability to do its work. Starting Wednesday, the high court will weigh whether to uphold a ruling that says the commission can’t question or prosecute legislators based on their votes and other legislative actions.

The Ethics Commission says that if the ruling stands, it would cripple its authority to police unethical behavior in the General Assembly and allow legislators to run amuck.

“[The decision] would allow legislators to introduce any type of legislation and vote on anything regardless of whether it benefits them,” says commission lawyer Jason M. Gramitt.

Supporters of the ruling say the state Constitution, under an ages-old principle, protects lawmakers from being questioned about actions they took while fulfilling their legislative duties, including the consideration of and voting on legislation.

“It’s important to uphold the Constitution,” says John A. Tarantino, Iron’s attorney.

The case centers on an Ethics Commission investigation into former Senate President William V. Irons’ ties to drugstore giant CVS.

Irons unexpectedly resigned in 2003 after two decades representing East Providence in the Senate. As chairman of a committee that considers health-care issues, Irons had opposed controversial legislation that would have allowed patients covered by Blue Cross & Blue Shield to get prescriptions filled at a pharmacy of their choice. CVS, one of his clients in his insurance business, wanted the bill killed, and it was later disclosed that Irons had collected hundreds of thousands of dollars in commissions on a Blue Cross policy covering CVS workers.

The Ethics Commission found probable cause that Irons broke the ethics code by using his office for financial gain and voting on legislation in which he had a substantial conflict of interest. The next step would typically have been a trial-like hearing before the commission.

But Irons took the case to Superior Court, arguing that the state Constitution’s “speech-in-debate” clause provided him with legislative immunity from such prosecution. Commission lawyers contended voters “carved out a narrow exception to legislative immunity” when they amended the Constitution in 1986 to create the Ethics Commission.

Superior Court Judge Francis J. Darigan in October sided with Irons and dismissed the ethics charges against him. He found that the “speech-in-debate” clause shielded lawmakers from being questioned or investigated by the commission based on their legislative acts.

It’s that decision that will be before the state Supreme Court this week. The commission appealed Darigan’s ruling, asserting that voters intended to have Ethics Commission oversight of lawmakers when they passed the 1986 amendment.

“It comes down to what was the intent of the ethics amendment,” says Gramitt, who will argue for the commission Wednesday. “We have yet to meet anybody who voted for the ethics amendment who thought they were exempting legislators.”

Tarantino, Irons’ lawyer, disagrees, saying it is a matter of upholding the Constitution. He looks to a clause that reads: “For any speech in debate in either house, no member shall be questioned in any other place.”

“The speech-in-debate privilege … doesn’t eviscerate the Ethics Commission’s powers to do anything,” he said. “You can take action against legislators … you simply can’t base a charge on how the legislator votes,” as they did in the Irons case.

He argues the commission, if the decision stands, would remain free to investigate lawmakers for illicit, improper and illegal activities. The court will also be asked to consider Irons’ request for a jury trial should the commission prevail.

The Ethics Commission was born in 1986 out of clamor for reform following state Supreme Court Chief Justice Joseph Bevilacqua’s resignation and the revelation that political insiders were getting special, low-interest mortgages. Voters passed a constitutional amendment that called for the creation of an independent, nonpartisan commission to safeguard government ethics. The new body had unprecedented power to remove public officials from office and adopt its own ethics code.

“The goal was to create something constitutionally mandated,” that wasn’t always under threat from legislators, said Sara M. Quinn, who once served as the commission’s executive director. “It was a cry for stronger ethics, not to weaken them.”

Then came the state banking crisis in the early 1990s, with angry throngs storming the State House. The commission moved, for the first time, to change its ethics code, without General Assembly approval.

Then-Gov. Bruce G. Sundlun sought an advisory ruling from the state Supreme Court. The court ruled in 1992 that the commission could enact its own ethics laws.

That opinion proved, Quinn says, that the court at the time was sensitive to the need for ethics stewardship.

Since 1996, 44 complaints have been filed against legislators, 15 of which ended with an ethics code violation, Gramitt said. The commission can impose fines of up to $25,000 per violation.

Its stiffest legislative fines have gone to former state Sen. John A. Celona ($130,000), former Senate President Joseph A. Montalbano ($12,000), and House Majority Leader Gordon Fox ($10,000).

Gramitt says Darigan’s decision would have prevented the commission from questioning Fox as well as Celona, who ended up in prison on federal corruption charges.

The Rhode Island Affiliate of the American Civil Liberties Union, which backs Irons’ position, says, so what? The commission would still be able to prosecute legislators for crimes such as bribery, according to executive director Steven Brown. The ACLU has been a persistent critic to what it views as the commission’s largely unfettered powers, he said.

“Our concern is the argument the Ethics Commission has raised that the speech-in-debate doesn’t apply because the ethics amendment trumps it,” Brown says. “The speech-in-debate clause remains a protection for legislators.”

Longtime ethics observers dispute those claims, arguing the amendment’s intention is clear. The speech-in-debate clause was intended to encourage open and vigorous debate, not to be a haven for lawmakers to violate the ethics code, they say. “I think those legislators who rely on that argument are desperate,” says Rae Condon, a lawyer who has advised Common Cause Rhode Island on ethics issues and was the first director of the Conflict of Interest Commission. “They have some problem and they’re trying to get out of it.”

Common Cause, the League of Women Voters of Rhode Island and Operation Clean Government, which filed the Irons complaint, have filed briefs supporting the commission.

“I think it will be another sad day for us if they say the legislators are not subject to the ethics code,” Condon says.

If the court rules for Irons, she says, reform groups will be left to push another constitutional amendment.


Friday, May 8, 2009

Newsmakers 5/8: William Irons' Case

Reported by: Tim White

EAST PROVIDENCE, R.I. (WPRI) - This week on Newsmakers, the state Supreme court hears former Senate President William Irons' case.

The outcome could have a profound impact on how the ethics commission operates.
Does the state's constitution give lawmakers legislative immunity from ethics probes?
Executive Director of Common Cause Rhode Island, John Marion weighs in.

Saturday, May 2, 2009

R.I. Attorney General Backs Legislative Immunity in Irons Case

By Katie Mulvaney

Journal Staff Writer


PROVIDENCE — Attorney General Patrick C. Lynch has weighed in on former Senate President William V. Irons’ quest to persuade the state Supreme Court to let a ruling stand that says the state Constitution protects lawmakers from ethics probes into their legislative acts.

The attorney general argues the high court need not take up the constitutional question at all, that the Ethics Commission itself issued an advisory opinion that gave Irons the OK to cast legislative votes that might have a financial impact on his clients.

Lynch’s friend-of-the-court brief comes about two weeks before the high court is to hear arguments on May 13. It drew fire Friday from the Ethics Commission and other parties with a stake in the case, with all saying they would like the constitutional issue settled. They complained its late date did not give them a chance to respond as the deadline to file briefs is up.

“If the court goes along with the attorney general’s brief then the issue of legislative immunity is still alive in Rhode Island,” commission lawyer Jason Gramitt said. The next lawmaker to face alleged ethics violations will raise the same defense as Irons, he said. “We think it’s better to address it now.”

Irons resigned in 2003 after two decades in the Senate. He had opposed pharmacy-choice legislation that CVS, which he sold insurance to, wanted killed. The Journal disclosed that Irons had collected hundreds of thousands of dollars in commissions on a Blue Cross policy covering CVS workers. The Ethics Commission found probable cause that Irons broke the ethics code. The next step would typically have been a commission hearing.

But Irons went to Superior Court, arguing that the Constitution’s “speech-in-debate” clause provides him with legislative immunity from such prosecution. Commission lawyers contended voters “carved out a narrow exception to legislative immunity” when they amended the state Constitution in 1986 to create the Ethics Commission.

Superior Court Judge Francis J. Darigan in October dismissed ethics charges against Irons, finding that the “speech-in-debate” clause of the state Constitution prevented the commission from questioning or investigating lawmakers based on their legislative acts. The case was appealed to the Supreme Court.

Lynch’s three-page brief asserts it would be inconsistent with high-court practice, if the court took up the speech-in-debate question before addressing a 1999 Ethics Commission advisory opinion advising Irons that his participation in pharmacy-choice legislation would not be a conflict of interest. “It is the state’s position that resolution of this significant constitutional issue is unnecessary since an alternative, non-constitutional issue exists that first must be examined,” wrote Special Assistant Attorney General Michael W. Field and Assistant Attorney General Rebecca Tedford Partington, deputy chief of Lynch’s civil division.

The Ethics Commission and Irons say they want the case to proceed on constitutional grounds. “From our perspective, we believe the court can and should address the constitutional issue,” said Irons’ lawyer, John A. Tarantino.

Gramitt said the 1999 advisory was based on information Irons provided and did not specify that his client was CVS. “The question is if the commission had known would they have advised him in the same way,” Gramitt said. The ethics investigation, had it proceeded, would have explored whether Irons deliberately omitted that detail.

Tarantino argues the speech-in-debate protects Iron from that line of questioning, period, but that the advisory will be part of the former senator’s defense if the court rules for the commission. “We’re saying he shouldn’t be prosecuted at all.”

The watchdog groups Common Cause Rhode Island and Operation Clean Government remain perplexed. “We find it interesting that the defender of the state Constitution [the attorney general] is trying to get the court to punt on the constitutional issue,” said John Marion, executive directive of Common Cause. “It seems like he would be interested in getting the constitutional question answered.”

Chuck Barton, president of OCG, said it looked like Lynch, who is said to be in the Democratic race for governor, is playing it both ways: “It looks like he’s siding with the Ethics Commission but at the same time he seems to be finding a way to endorse Irons’ behavior.”

Lynch’s spokesman Michael J. Healey says not so. “It’s not pro-Irons; it’s not anti-Irons,” he said. “It’s about trying to help the court settle an important issue.”