A return to a status quo that served Rhode Island well

Providence Journal

A return to a status quo that served Rhode Island well

Saturday, May 1, 2010

By JOHN MARION

As the debate about what to do in the wake of the Rhode Island Supreme Court’s June 2009 decision in William V. Irons v. The Rhode Island Ethics Commission begins in earnest in the General Assembly, some misperceptions (and mischaracterizations) have arisen. As the group that began the initiative to counter that decision, Common Cause would like to set the record straight.

In July 2009 we drafted, with input from Operation Clean Government, language that in our view would restore the General Assembly to the jurisdiction of the Rhode Island Ethics Commission for their “core legislative acts” such as voting.

In the majority’s opinion, the court suggested such an action could be taken, as long as it was, in the court’s words, “sufficiently explicit.” In February 2010, then-Majority Leader and now House Speaker Gordon Fox agreed to sponsor our language after we agreed to add four words to our proposal — “by the ethics commission” — to the sentence “For any speech in debate in either house, no member shall be questioned in any other place, except by the ethics commission as set forth in Article III, section 8 of this Constitution.”

We feel our language is both sufficiently explicit to achieve the desired purpose, but de minimusso as to limit any unintended consequences.

Nonetheless, foes of our proposal in the General Assembly have sought to mischaracterize it. Some have said that it would expand the power of the Ethics Commission. Others have said it would chill the speech of legislators. It has even been called a “radical” proposal. None of these statements are true.

It is not our desire to radically alter the role of the Ethics Commission. Common Cause has a simple goal: to restore the jurisdiction of the Rhode Island Ethics Commission to what it was in 1987-2008.

If our proposal passes the legislature and is approved by a majority of voters in November, then we’ll simply be turning back the clock two years. If you think the General Assembly was not able to function freely, and the commission’s prosecutions of John Celona and William Irons were misguided, then by all means do not support our proposal.

Some believe our proposal would let the Ethics Commission interfere too much with the legislative process. Solid safeguards are already in place to prevent overreaching by the Ethics Commission. The regulations enacted by the Ethics Commission are subject to the same judicial review as are the actions of any governmental body. And given the strict scrutiny applied to any policy that infringes on freedom of speech, surely any that might be enacted that conflict with the Bill of Rights would be overturned.

It’s important to step back and realize that under our proposal members of the General Assembly still enjoy protection against criminal and other civil prosecution for their “speech in debate.”

Furthermore, the commission itself will only be overseeing the “core legislative acts” of legislators for violations of the Code of Ethics. That code, originally written by the legislature, is almost exclusively concerned with financial conflicts of interest, largely found in Sections 5(a) and 5(d) of the Code of Ethics.

The Ethics Commission is not in the business of judging the content of speech.

Another mischaracterization is that our proposed amendment would limit the role of the judicial branch. We do not seek to prevent people from appealing the decisions of the Ethics Commission to the Superior Court.

If our language passes, that right will still exist for those subject to the Code of Ethics. Our language does seek to clarify that the Ethics Commission, like many quasi-legislative bodies, has the right to hear cases. This is a well-established principle under the public-rights doctrine recognized by state and federal courts.

We do not take umbrage with those who say that the Ethics Commission is a unique body. But its uniqueness is derived from the will of the majority of Rhode Islanders who ratified the proposal of the 1986 Constitutional Convention. The delegates and the people who supported their work wanted an independent body to govern the ethics of all public officials. The independent nature of our ethics watchdog makes Rhode Island a model for America.

Keep in mind that even in independence, elected officials make all the appointments to the commission, and set the level of fines the commission can dole out.

Our proposed amendment is about reinstating a very limited part of the jurisdiction of the Ethics Commission as it applies to only 113 of the many hundreds of public officials in Rhode Island. Currently the 39 legislative bodies that govern our cities and towns are subject to the Code of Ethics, and it has had no chilling effect on the speech and debate in those bodies. Nor was there a chill when the commission had jurisdiction over the General Assembly for 21 years.

Our less-than-radical proposal is being supported by Governor Carcieri, Lt. Gov. Elizabeth Roberts, Secretary of State A. Ralph Mollis and General Treasurer Frank Caprio — two of whom (Roberts and Caprio) previously served in the General Assembly, and one of whom (Carcieri) has been fined (four times) by the Ethics Commission.

When you hear someone arguing that our proposal is a radical solution, we hope you consider some of what you’ve read here. Do not let opponents lead you down the garden path with their ideas about how this proposal does anything but return us to the status quo that existed in 1987-2008.

John Marion is executive director of Common Cause Rhode Island.