Court ruling upheld the Constitution

Politics as Usual by Jim Baron

There is a lot of crying over the U.S. Supreme Court decision last week in Citizens United v. Federal Elections Commission but 1) it should have come as a surprise to no one and 2) it was correctly decided.

It should have come as no surprise because the high court took the unusual step of inviting the dispute about whether corporations and unions should be able to spend money directly from their treasuries to advocate for or against a candidate or issue during an election. The case started as a dispute about whether an anti-Hillary Clinton documentary called “Hillary: The Movie” should be allowed to be offered in an on-demand format on a cable television service immediately before the 2008 primaries in some cities.
But when it went to the Supreme Court, the justices asked for argument on the larger issues of corporations and unions spending money directly on electioneering. You could almost see the conservative justices licking their chops over the prospect of ruling on that matter.
But the fact is, they ruled correctly. They upheld the letter and the spirit of the First Amendment of the U.S. Constitution.
Yes, the decision is troublesome and it will exacerbate the problem of money skewing the election process. And, yes, it will benefit Big Oil and Big Pharma and Big Banking, not to mention the Republican Party those entities seem to favor, but that can’t be helped. As constitutional scholar Bill Belichick, might say, the First Amendment is what it is.
And it says that Congress shall make no law abridging the freedom of speech or of the press. No law means, well, no law. Not even a well-meaning one intended to reduce the influence of money in politics.
You can’t have the government deciding what can and can’t be said during an election campaign, at what point it can or can’t be said or who can or can’t say it. Government decisions are made by people who run in elections.
Of course the incumbents, who are the ones making the rules, are going to try to stifle any voices that may try to oppose them. That’s why laws like this that limit political speech during an election period get passed. It’s always easier to play a game when you are the house, and you wrote the rulebook.
I understand the problem: Big, bad corporations, and perhaps even those evil unions, can spend millions to buy an election for the candidate they support. Or perhaps they could put those millions toward a challenger of some incumbent who won’t do their bidding.
They could even wield the mere threat of using those millions to help a challenger in order to bring a recalcitrant pol to heel, thus getting their way and keeping their millions. All of this already happens now, of course, but the Supreme Court’s ruling last week will up the ante by a couple of orders of magnitude.
We can not let that be used as a pretense for censoring political speech that we might not like. The antidote to that is more speech. Granted, good government groups and others who might want to counter the messages from corporations and unions don’t always have millions to drop on counter-ad campaigns, but they have ways to get their message out. That’s one of the services the media generally provides free of charge.
What the Supreme Court’s decision didn’t do, and I have seen this confused in some media reports, is that it does not allow corporations and unions to contribute directly to candidates’ campaigns. That is still illegal, although Common Cause of R.I. executive director John Marion issued a press release worrying that this would start us sliding down a slippery slope in that direction. As he cautioned, we should remain vigilant against attempts to undermine that prohibition.
But as long as the law is going to consider corporations (I don’t want to keep being redundant over and over again, so when I say corporations, understand it to mean “and unions,” as well; it will save space) as having most of the same rights as persons, then you can’t restrict their freedom to speak and put forth their ideas and opinions, even — no, make that especially — during an election campaign. Yeah, I’m squeamish about giving corporate entities the same rights as citizens, but one fight at a time.
What Justice Anthony Kennedy’s decision means is more work — more work for you, and more work for me and my colleagues in the media.
The work for you is to pay attention and give some thought to the things you are seeing in newspaper ads and hearing in TV and radio commercials. You will have to read or listen to the message and think about what the motive of the person saying it might be, what is in it for them, or whose ox are they trying to gore and why. You can’t allow yourself to be swayed by the clever public relations and propaganda tricks they are going to employ. It would help to background yourself with facts from newspaper stories so you can apply those facts to the assertions being made in the ads.
For me and my colleagues in the media it is going to mean more work because we are going to have to dig to find out, who is actually behind the ads you are seeing in the paper and on TV. They are not going to say “this ad on behalf of the senator who has been a shill for the banks and financial institutions is brought to you by Morgan Stanley and AIG.” No, they are going to be presented by “Concerned Citizens for Liberty, Mom and Apple Pie.” It’s going to be up to us to find out, and tell you, just who those concerned citizens are, how much money they are laying out and what their agenda is. (Full disclosure: this is also going to mean more work for me and my colleagues in the media because the companies we work for are going to be rolling in dough from those millions the corporations and unions will be spending on advertising.)
The dire warnings that this decision is going to turn the United States, and the individual states, into even more of a corporatocracy than they already are can only come true if you don’t pay attention and think critically about who you are going to vote for and why and instead allow yourself to be buffaloed by some slick ad campaign.
Self-government takes some work. If you allow yourself to get suckered, don’t blame the Supreme Court or the First Amendment.

Senate panel weighs ethics rules

By Katherine Gregg

Journal State House Bureau

PROVIDENCE — After 20 years at the Rhode Island State House, Sen. J. Michael Lenihan has his doubts about putting lawmakers in charge of policing the conduct of other lawmakers.

“I’ve seen opportunities for the Senate to police itself and it hasn’t,” said Lenihan, D-East Greenwich, on Wednesday, a few hours before a key Senate committee resumed its debate over ethics enforcement on Smith Hill, in the wake of a recent Rhode Island Supreme Court decision neutering the state Ethics Commission.

To illustrate his point, Lenihan recalled a closed-door meeting in early 2004 in the office of then-Senate President Joseph A. Montalbano that was “attended by virtually the entire Democratic Senate.” The subject: what to do about then-Sen. John. A. Celona, a North Providence Democrat who was ultimately convicted of selling the power and influence of his position at the State House to the state’s major health-care companies for personal gain.

With new revelations about Celona’s conduct coming to light on an almost daily basis, Lenihan said: “Six or seven of us called for his resignation,” but “frankly, those of us coming out against Senator Celona were given a hard time.”

“I don’t put that up to anything that is nefarious,” Lenihan said Wednesday. “But it serves to me as a practical example of that kind of reluctance — or unwillingness — to act against people [with whom] you have developed a personal relationship … [and] I’ve seen too many practical examples.”

But Lenihan never had to wage the battle he anticipated when the Senate Rules Committee met later in the day.

In the week since the panel last met, Senate leaders had retooled an earlier proposal to let the Senate adopt and enforce its own conflict-of-interest rules. “If that is what the U.S. Senate does, and it is adequate for them, why isn’t it adequate for the Rhode Island Senate?” said Sen. Christopher Maselli, the Johnston Democrat who chairs the committee.

By Wednesday, both Maselli and Senate Majority Leader Daniel Connors were saying the Senate never intended to end-run the Ethics Commission, but rather to create an interim-mechanism for overseeing — and if necessary, regulating — the conduct of its members until November, when voters will presumably get a chance to reinstate the power of the Ethics Commission over legislators.

The current gap stems from a June decision by the Supreme Court that effectively removed lawmakers from Ethics Commission scrutiny.

In a case involving former Senate President William V. Irons, the court said the “speech-in-debate” clause in the Rhode Island Constitution gives legislators immunity from prosecution by the Ethics Commission for “core legislative functions” such as voting and speaking.

Both Lenihan and House Majority Leader Gordon Fox have promised to introduce legislation giving voters a chance to reinstate the Ethics Commission’s jurisdiction. The Rules Committee made public two new proposals drafted by the Senate parliamentarian, former Sen. John Roney, to govern what happens between now and then.

One would allow the Rules Committee “to investigate and make recommendations to the Senate concerning … violations of the code of ethics not within the jurisdiction of the Rhode Island Ethics Commission.” The other would add to the Senate rules the same basic conflict-of-interest prohibitions that exist within the state ethics code.

With Maselli promising an opportunity for public comment at a later meeting, there was no vote. But John Marion, executive director of Common Cause, said he remains concerned.

While he had no objection to the Senate adopting “internal ethics rules,” he said: “we don’t want them to have an excuse for not putting it before the voters.” He said “they should take that issue up first, and gain the faith of the voters, and then get their own house in order.”

Selection of magistrates overhaul sought

By Katie Mulvaney

Journal Staff Writer
PROVIDENCE — For nearly a decade, Rep. Donna M. Walsh has sponsored a bill that would hold court magistrates to the same selection process as state judges.

Her goal, she says, is to ensure that magistrates are chosen based on their skills and qualifications, not their connections to Rhode Island’s political establishment.

Her refrain: magistrates earn virtually the same $100,000-plus salaries and perform many of the same duties as judges and therefore should be subject to a merit-based selection process voters created for judges in 1994.

“They really are judges,” said Walsh, a Charlestown Democrat. “It’s a political-patronage system. Judges can use it to award their people.”

Walsh first took aim at magistrate selection as a member of the Senate Judiciary Committee in 2000, sponsoring legislation to change the confirmation process after seeing a flood of magistrates. It wasn’t politically popular at the time, she says, because then-House Speaker John Harwood’s wife, Patricia Lynch Harwood, had just been appointed Superior Court magistrate. It remains unpopular today.

“I’m beginning to think I am the only one concerned with this issue,” Walsh said last Wednesday, a day after again submitting the bill.

The number of magistrates has swelled from 2 in 1990 to 20 today. The posts, often stepping stones to judgeships, come with a $131,866-base salary, 10-year life, and many of the same powers as judges, such as presiding over arraignments, motions and sentencing in uncontested cases. They do not hear trials, and their ranks have grown to include the Senate Judiciary Committee chairman’s sister and staff members of key state lawmakers.

Walsh’s bill would take the appointing authority for magistrates away from the Superior Court presiding justice, Family Court and District Court chief judges and the Supreme Court chief justice. Magistrates, instead, would be selected in the same manner as judges.

As the process stands now, an opening is posted. The head of the respective court then selects a candidate to fill the vacancy without disclosing who is in the running. The Senate votes on whether to approve the selection.

Rhode Islanders voted to revamp the judicial nominating system in 1994 after the resignation of two chief justices amid scandal. The changes included the creation of an independent, nonpartisan Judicial Nominating Commission to ensure judicial selections based on merit, not politics. The commission vets candidates and forwards a list of finalists to the governor. The governor has 21 days to submit a nominee to the state Senate for approval.

Critics say the current magistrate selection process bucks the merit-based selection voters backed more than 15 years ago.

“It undermines confidence in the integrity of the bench, and that’s really all the bench has,” said Michael J. Yelnosky, a professor at the Roger Williams School of Law.

Supreme Court Chief Justice Paul A. Suttell, who took the helm in July, is supportive of merit-based selection, but sees no great problems with the existing system, court spokesman Craig N. Berke said. The JNC, if able to take on magistrate selection as well, may be the appropriate body for the task, he said.

Suttell said he believes careful consideration should be given to the ultimate appointing authority for magistrates — whether it is the governor or the chief judges of the various courts, Berke said. At a minimum, Suttell wants the chief judges to participate in the selection process because they are the most familiar with the specific needs that magistrates fulfill, such as drug court or the truancy and child-support calendars, he said.

JNC Chairman Dr. Herbert J. Brennan declined to comment on the magistrate selection process. But, he said, “I am confident that the commission could ramp up to carry out the added responsibilities of vetting magistrates.”

Common Cause Rhode Island and Operation Clean Government, both longtime backers of similar efforts, support the measure. But even supporters recognize the challenges ahead. It will take, Yelnosky said, a scandal to embarrass or motivate lawmakers to change the system.

Some RI lawmakers want to police their own ethics

Katherine Gregg

Providence Journal State House Bureau

PROVIDENCE, R.I. -- Forget the Ethics Commission.

The Senate Rules Committee is considering a proposal to let the state Senate adopt its own conflict-of-interest rules, and police the behavior of its own members.

"If that is what the U.S. Senate does, and it is adequate for them, why isn't it adequate for the Rhode Island Senate?'' asks Sen. Christopher Maselli, the Johnston Democrat who chairs the committee.

Not everyone is enthralled with the idea.

"Common Cause opposes any plan to have the Rhode Island Senate police itself,'' says John Marion, executive director of the citizens' advocacy group. "Historically efforts by legislatures to monitor their behavior internally have been unsuccessful. One need look no further than the U.S. Senate, whose Ethics Committee has fallen into a partisan stalemate,'' Marion said.

The proposal was aired for the first time last week at a sparsely attended meeting of the Senate Rules Committee, which is taking its cues from the Senate's $53,019 a year parliamentarian, John Roney, the former senator who authored the "Roney amendment'' allowing the Ethics Commission to impose $5,000 fines on anyone who files a "frivolous'' complaint against a politician. It never has.

As a senator in the mid-1990's, Roney told colleagues: "These complaints are all too easily filed...They trigger immense investigations, and they do tremendous damage against whom they are filed." As a lawyer, Roney has also represented numerous clients before the commission, including Secretary of State A. Ralph Mollis, who was fined $3,000 in December 2006 for soliciting contributions from town employees when he was still mayor of North Providence.

Maselli said there is no written proposal yet, but Sen. Frank Ciccone, D-Providence, is working on one, and Roney has advised the panel that Rhode Island is the only New England state where lawmakers do not have their own internal conflict-of-interest rules, and lots of states - and Congress - have taken it upon themselves to make sure their members comply.

The discussion stems from a June decision by the Rhode Island Supreme Court that effectively removed Rhode Island lawmakers from Ethics Commission scrutiny.

In a case involving former Senate President William V. Irons, the court said the "speech-in-debate" clause in the Rhode Island Constitution gives legislators immunity from prosecution by the Ethics Commission for "core legislative functions" such as voting and speaking. The decision marked a huge victory for Irons, who had been accused of voting on legislation in a way beneficial to a big client.

Other lawmakers - including House Majority Leader Gordon Fox - have promised to introduce legislation addressing the current gap. But Maselli said Roney told the Rules Committee he does not believe the Ethics Commission can, at this point, even consider a complaint against a legislator.

Maselli said his mind remains open to the alternative Common Cause is proposing: giving voters a chance in November to reinstate the Ethics Commission's authority over lawmakers, but that's months away.

Between now and then, "what does somebody do? Should we, at the very least, put something into effect [for] the interim?'' The debate will resume when Senate Rules meets again on Wednesday.

R.I. Assembly faces deficit, taxes as session begins

By Katherine Gregg, Steve Peoples and Randal Edgar

Journal State House Bureau

PROVIDENCE — Governor Carcieri’s attempt to slash $125 million in local aid in mid-budget year has set the stage for a fierce election-year battle at the State House over taxes, spending and how Rhode Island’s 39 cities and towns provide services with less state money to help them.

In many ways, the 2010 General Assembly session that opens Tuesday begins where the last one ended, with a massive budget hole, one of the highest unemployment rates in the nation and polls showing voters none too pleased with their political leaders.

Hearings will be called, and debates will resume over same-sex marriage, the dangers of talking on cell phones while driving, the modest steps a state legislature can take to blunt the impact of the national foreclosure crisis, the court-granted exemption of the lawmakers from Ethics Commission scrutiny and, of course, gambling.

But this is not the typical election-year session that begins with the promise of no new taxes.

Lawmakers are already debating what kinds of tax increases would be the least painful. Property tax hikes? A rejiggering of corporate taxes? A rollback in the tax breaks offered to the wealthiest taxpayers in recent years in the hope of spurring new jobs?

Republican Carcieri argues no tax increases are necessary if the lawmakers give municipalities the “tools” they need to reduce spending.

But key lawmakers are unconvinced. Their local leaders are crying foul. Organized labor and the advocacy groups are primed for battle. Even Carcieri felt compelled to offer the communities an escape route: the legal authority to impose “supplemental” taxes mid-year.

“I don’t see anything but probably the most difficult session we’ve ever had coming up,” said AFL-CIO President George Nee.

And all this will play out in a supercharged political atmosphere. The term-limited governor is barred from running again, but all 113 lawmakers have to run for reelection, and House Speaker William J. Murphy’s announcement that he will relinquish the post this session has sparked a leadership fight within the House.

From the outside looking in, there is anger in some quarters.

“I don’t know of too many people who think Rhode Island is thriving and are happy with the way the legislature is dealing with the problem, or should I say not dealing with the problem,” said Colleen Conley, president of the Rhode Island Tea Party.

Murphy acknowledges “the public is upset,” and that will complicate the Assembly’s efforts to tackle the budget crisis because “squeamish” lawmakers will be looking over their shoulders. “As the old saying goes, there’s no interest like self interest, and you know, members who are running for reelection want to make sure that they are going to be victorious,” Murphy said in an interview last week.

He also acknowledged that he will step down before the session ends to allow his chosen successor –– House Majority Leader Gordon Fox –– to take over. Fox is competing for the job against Rep. Gregory Schadone, D-North Providence.

Asked when he will step aside, Murphy said: “I am starting the session on the rostrum and I will continue to get through the budget.” As speaker? “I will not answer that question.” Why not be more specific? “Because if I do decide that I am stepping down early, it would be my membership who I would tell first.”

THE HOUSE OPENS at 2 p.m. Tuesday, the Senate at 4 p.m., with veto override votes likely before the 2010 session officially starts. Among the vetoed bills slated for likely rescue is a measure to allow partners in same-sex relationships to make funeral decisions for each other. The session opens under the cloud of unrelenting deficits –– $219 million this year, more than $400 million in the budget year that begins July 1 –– that have made it harder and harder for the state to pay for basic services, from snowplowing to keeping motor vehicle registries open.

Demands for government help — such as state-subsidized medical care — have surged at the same time revenues have plummeted.

As an interim solution, Carcieri is proposing to cut as much as $125 million in education and municipal aid over the next six months, eliminate guaranteed cost-of-living increases for thousands of future retirees, and plug more than a quarter of the current shortfall with one-time fixes such as sales of state property.

The lawmakers are hoping for other options, including a possible new round of federal stimulus dollars. “Over several of our budgets, it seems that we’ve been able to pull a rabbit out of a hat. I don’t know if there’s any rabbit left, but if there’s one left down there, we’ll come through,” Murphy said. The governor’s tax overhaul may provide another rabbit.

While a final plan has yet to emerge, Carcieri has had preliminary discussions with legislative leaders about creating a new tax on business — a “net receipts tax”— while eliminating at least one other tax, such as the state’s corporate income tax, the sales tax or the personal income tax.

The governor wants such a plan to be “revenue neutral” — meaning that any new taxes would be completely offset by tax cuts elsewhere — but the Assembly will have the final say. Minor tweaks in Carcieri’s plan could produce tens of millions of dollars.

Until a rabbit emerges, however, the budget debate will be dominated by Carcieri’s reliance on local aid cuts to close the budget hole.

Some frustrated local officials have already promised the midyear cuts will lead to increased property taxes.

“The only thing I’ve heard as a statewide solution is raise taxes, and I just don’t accept that,” Carcieri responds. But his recent budget proposal outlines a step-by-step process by which communities can raise their taxes in midyear to offset the state aid cuts.

Said Senate Majority Leader Daniel Connors in a recent interview: “I don’t think Rhode Island taxpayers are going to make a distinction between whether the tax is coming out of their right pocket or is coming out of their left pocket. And to suggest that [Carcieri’s] corrective action plan does not result in a tax increase is not honest.”

ORGANIZED LABOR –– which represents thousands of teachers and municipal workers –– will form an unlikely coalition with mayors and town managers to fight the local aid cuts.

But the groups will fight each other on the governor’s proposed “tools” that he says will help them survive the cuts.

Carcieri has asked lawmakers again to prohibit minimum-manning requirements in future labor contracts, require municipal employees to pay the same, generally higher, co-share toward their health insurance as state workers, and lay the groundwork for a “statewide purchasing system.”

House and Senate leaders indicated a willingness to provide some relief from state mandates, but reject changes in contractual minimum-manning requirements and health-care costs.

“To suggest that [minimum manning] specifically is a mandate … jumps out at me as being part of the spin,” said Connors. “A legislature is not allowed under the Constitution to impair the obligation of a contract. It’s unconstitutional.”

The clash leaves Assembly leaders with few other obvious budget-cutting alternatives — especially in the middle of a fiscal year.

While he opposes raising property taxes, Peter Asen, executive director of the advocacy group Ocean State Action, said the state needs to look at “all possible options and other ways to raise revenue.”

The group has pushed lawmakers to eliminate the flat tax alternative, a tax break for high earners adopted under Murphy’s leadership. In a recent interview, Murphy said he could not guarantee the flat tax could be preserved in this fiscal environment.

David Carlin, lobbyist for the Chamber of Commerce Coalition, said the assembly needs to fix the budget without “raising taxes or creating new taxes.”

“We vehemently disagree … that new taxes might be necessary to solve the budget problem,” Carlin said. “We believe that any time you increase taxes or create new business taxes you are putting a major roadblock on the way to recovery.”

ANY DISCUSSION about the state’s financial plight leads to an inevitable debate over state-sponsored gambling and the threat to the state’s third-largest revenue source if Massachusetts allows casinos and slots at its racetracks.

The Twin River track-and-slot parlor in Lincoln has about 4,750 video-slot machines placed there by the state Lottery; the state keeps roughly 61 cents out of every lost dollar. During the year that ended on June 30, that produced $242.3 million for the state.

With Twin River in bankruptcy, lawmakers face a series of decisions. Twin River’s owners want to be freed from a state law requiring them to offer at least 125 days of greyhound racing to stay open. Their U.S. bankruptcy court filing would also require the state to pay up to $11 million in “annual support,” including a new management fee of up to $1.4 million.

Murphy favors — and Carcieri has said he would not oppose — a referendum to allow full-fledged casino gambling at Twin River and Newport Grand.

“All but for table games, they are almost casinos now,” Murphy said. “With Massachusetts breathing down our necks … I say we go forward.”

But Connors, whose district includes a portion of Lincoln, notes that state law requires the host community to initiate a casino referendum, and doubts that will happen. He also questions the notion that “casinos are a panacea to all of our problems.”

ADVOCATES OF same-sex marriage are pushing for an opening-day override of Carcieri’s veto of a bill that would let “domestic partners” make funeral arrangements for their loved ones. They will also resume their drive to legalize same-sex marriage.

“I don’t think that something incremental like civil unions is something we want, we want full marriage equality,” said Susan Heroux, a member of Queer Action of Rhode Island.

The Rhode Island chapter of the National Organization for Marriage will oppose such moves, said chapter director Christopher Plante.

“Thirty of 31 states that have had a chance to vote on this have rejected homosexual marriage,” he said. “It’s clear that America doesn’t want this.”

The lawmakers themselves are at the center of a major ethics issue that demands swift action, according to citizens advocacy groups such as Common Cause and Operation Clean Government.

A June decision by the Rhode Island Supreme Court essentially exempted legislators from prosecution by the state Ethics Commission for their official acts even if they are accused, for example, of selling their votes.

The ruling — in a case involving former Senate President William V. Irons — was based on an unprecedented reading of a speech-in-debate clause that has, for centuries, protected lawmakers in many states from civil suit or prosecution for their public utterances.

Senate leaders are not convinced legislative remedy is needed.

“If any legislator in this building commits any illegal act, there is no loophole which would prohibit their prosecution by the U.S. Attorney and the U.S. District Court and [conviction] of a federal crime,” says Connors.

But Common Cause is urging lawmakers to give voters a chance in November to amend the state’s Constitution to make it clear “that the Ethics Commission has jurisdiction to hear and decide all potential violations of the Code of Ethics notwithstanding the protections of the Speech in Debate Clause.” And Fox has pledged to introduce a measure to address the issue.

“Obviously, nobody is going to say that they do not think legislators’ actions should be under some sort of Ethics Commission authority. That’s what the people want. That’s what the people demanded,” Fox said.

For Carcieri, the 2010 session will be his last as governor.

When asked about Carcieri’s lame-duck status, Senate President M. Teresa Paiva Weed said: “Does it change anything?” Then, she said: “I’m hoping it will make him willing to work with us.”

But the governor said his status will not affect what he does, and he hopes the election year will not dissuade lawmakers from making tough decisions.

“I’ve learned in life that if you do the right thing and you explain to people why you’re doing it, I think that people understand.”