Why the Senate shouldn't regulate its own ethics

by John Marion and Larry Valencia

Mar 02, 2010

There is a plan that has been introduced to the Rules Committee of the Rhode Island Senate that would allow that body to police its own ethics. Our groups, Common Cause Rhode Island and Operation Clean Government, will oppose that measure, and we’d like to take this opportunity to explain why.

This effort began with the Rhode Island Supreme Court’s decision in June of 2009 in the case of William V. Irons vs. The Rhode Island Ethics Commission. In that decision, the Court majority found that members of the Rhode Island General Assembly are immune from prosecution by the Rhode Island Ethics Commission for any “core legislative act.” The reasoning for their opinion rests on the idea that when the voters approved a constitutional amendment in 1986 creating the Ethics Commission, they did not simultaneously repeal the “speech in debate clause” of the Constitution that protects legislators from prosecution for these “core legislative acts.” Surely when the voters overwhelmingly passed that amendment that read in part “all public officials shall be subject to the code of ethics” they meant to include the General Assembly. While we side with the dissenting justice, Chief Justice Suttell, we have to recognize the import of the Court’s ruling: members of the General Assembly are not subject to the Code of Ethics when they are engaged in their core legislative functions. We need to remedy this, once and for all.

Immediately our groups mobilized to push for a constitutional amendment for the 2010 ballot that would allow the voters to correct what we feel was an oversight in the 1986 Ethics Amendment. Our proposed amendment would return the Ethics Commission to the status quo that existed between 1986 and 2008. That resolution is now before the General Assembly, and we hope they will pass it and let the voters decide.

In the meantime, the Rhode Island Senate appears poised to adopt a plan to avoid coming under the jurisdiction of the Ethics Commission by allowing the Senate Rules Committee (chaired by Senator Christopher Maselli of Johnston) to decide whether members of the Senate have violated the Code of Ethics. This would be done under the auspices of the discipline clause (Article VI Section 7) of the Rhode Island Constitution that allows each chamber to determine how to punish its own members. In the history of the Rhode Island General Assembly, this would be the first attempt to create such a structure.

Why do we feel this is a bad idea? To answer that question we think it is important to go back to the creation of the Ethics Commission in 1986. The Ethics Commission is one of only two bodies, besides the legislature itself, enumerated in the Rhode Island Constitution. Article III where the Commission resides in our Constitution, reads in part (from Section 7), “The people of the state of Rhode Island believe that public officials and employees must adhere to the highest standards of ethical conduct..” It goes on to say in Section 8, “The general assembly shall establish an independent non-partisan ethics commission … All elected and appointed officials and employees of state and local government … shall be subject to the code of ethics.”

This language that was passed overwhelmingly by the voters of the state calls for an independent body to enforce ethics for all public officials. The Senate proposal calls for internal oversight. This is a concept fraught with complications. How are members of the Rhode Island Senate expected to judge their peers? The term “peer pressure” exists for a reason. All legislatures are governed by rules that require comity in order to perform their business. That is why every day the Senate hears bills on a consent calendar. All members must consent to doing that day’s business. Independent ethics oversight is designed to prevent that comity from interfering with the enforcement of the Code of Ethics.

And what if a member of the leadership is accused of violating the Code of Ethics? Would a member of the rank and file, who owes their place on a committee, or their legislative grant, to the leadership be willing to find the a member of the leadership guilty of violating the Code? Would the minority party find it a useful tactic to file endless ethics complaints to sully the reputation of the majority? There are a seemingly endless number of complications with putting real ethics oversight inside the institution.

A second good reason the Senate should not adopt this role is because it duplicates what already exists in the Ethics Commission. The Ethics Commission has a staff of 12, including three full time investigators, and five attorneys. Their annual budget appropriation is over $1 million. Does the Senate intend to hire professional investigators and attorneys who don’t owe their jobs to the very Senators they’re charged with investigating and prosecuting?

While the Rhode Island Senate may feel it is the prerogative of the body to police itself, we believe there are a whole host of reasons why this is inferior to the system that was in place for 22 years in the State of Rhode Island. All our groups are asking is that the people of the state be allowed to determine what they meant by “all public officials” back in 1986.

John Marion is the executive director of Common Cause Rhode Island, and Larry Valencia is the president of Operation Clean Government.