Common Cause on redistricting in Rhode Island

Today, May 19th, Common Cause executive director John Marion gave the following testimony before the Senate Judiciary Committee on S 924, a bill to create the official reapportionment commission for our state:

Reapportionment and redistricting are crucially important exercises in our democratic system of government. Reapportionment, the process of ensuring that districts are of equal population is at the heart of the principle of “one person, one vote” that we enjoy because of the Equal Protection Clause of the 14^th Amendment. Redistricting, the process of drawing political boundaries, has been the subject of mischief for the two centuries since the original gerrymander occurred in Massachusetts in 1811.

Rhode Island has one of the most partisan, and least constrained redistricting processes in the United States. This bill would just continue the same partisan and legislatively dominated process we have seen in decades past. I would like to take this opportunity to point out some of the glaring weaknesses in the bill.

The commission, as proposed, consists of 18 members; four each appointed by the Speaker and President and two each by the Minority leaders of the respective chambers. The remaining six members of the commission will come from what the bill describes as the “public,” but who are chosen by the Speaker and President respectively.

This design guarantees a partisan process with no independence. With a majority of seats (14 of 18) being chosen by leadership of the majority party, partisan redistricting cannot be prevented. And with public members being chosen by legislative leadership, without any stated process for citizens to apply for the seats, there is no measure of independence from legislative control. Under the proposed commission the real public has no confidence they are being represented in this process. Six states use independent commission where the legislature does not have control of the appointments, and the American Bar Association recommends that all states follow suit.

Additionally, while the legislation laudably proposes public hearings, no standards are set for the number or location. Given the impact of the redistricting and reapportionment processes on every citizen of Rhode Island, some minimum number and geographical dispersion should be articulated in the bill. Furthermore, public comment needs to be taken before the draft plan is created (as is specified in the proposed statute), as well as after the plans are drawn, so that the public can have maximum input. I have submitted model legislation designed by the Campaign Legal Center that deals with some of these issues regarding public access to the process.

The most important part of the legislation are the standards its sets for the redistricting process. Almost every state has a commission that must abide by stricter standards than those proposed here. The proposed legislation sets a bare minimum of standards. Other jurisdictions seek greater equality of population (2% rather than the legal maximum of 5%) for reapportioning state legislative districts. Other states add greater definition to the measures of compactness and contiguity. The use of minimum standards for reapportionment, and opaque definitions of compactness and contiguity allow for maximum flexibility in gerrymandering.

When it comes to protecting the rights of racial and ethnic minorities, this bill again falls short. 24 states give greater emphasis to providing representation for the historically underrepresented by mandating that “communities of interest” are taken into consideration. The proposed commission does not have any requirements for diversity in the membership of the commissioners.

The standards the commission abides by should be prioritized in the legislation. Without a ranking the standards relative weights cannot be given to the priorities. The commission, the public, and the courts who may eventually pass judgment on a plan do not know what to expect.

As you can see we have a lot of problems with how this is being done. We are happy to work with the sponsor and the committee to improve this bill and improve this process.

Clearer water in the Ocean State

This week the Rhode Island General Assembly made a small bit of history; for the first time it began putting copies of committee votes online. OK, maybe that’s not worthy of being called a historical achievement, but it is certainly a step in the right direction. Common Cause Rhode Island, along with other government reform groups, worked with the legislative leadership to bring about this change. Along with the earlier addition of floor votes online, this brings a needed level of transparency to our lawmaking branch of government.

By any measure, the website of the General Assembly trails its peers, and the public is poorer because of it. If Justice Lewis Brandeis, who said, “sunshine is the best disinfectant,” is correct, then Rhode Island has been living in the dark ages. This change starts to peel back on the opaque legislative process to reveal how our committees work, and provide a tool for the citizens of Rhode Island to hold their elected representatives responsible.

Of course there are more changes we would like to see. For one, we would like it if the General Assembly would join the ranks of the 49 other states plus the District of Columbia who have live streaming of their legislatures online. And Common Cause Rhode Island will continue to work toward that. But it’s worth taking a timeout to appreciate what we have accomplished so far. So three cheers for some transparency in Rhode Island.

Ethics panel must have authority over legislators

On April 13th, the following Op-ed by John Marion and Amy Goins appeared in the Newport Daily News.

Ethics panel must have authority over legislators

by John Marion and Amy Goins

Should members of the General Assembly, our most important elective body, be immune from the ethics laws that govern all other elected and appointed officials? According to the March 2nd Guest View column by Steven Brown of the American Civil Liberties Union, the answer is yes. Common Cause couldn’t disagree more. Not only do we believe that Mr. Brown is incorrect in asserting that the Ethics Commission is anathema to a democratic system of government, we assert that strong ethics enforcement is important to an economically vibrant state.

But first, some background is in order. In June of 2009 the Rhode Island Supreme Court held that the “speech in debate” clause of the state Constitution provides immunity from prosecution for members of the General Assembly. The Court reasoned that this immunity trumps the ethics amendment that was passed in 1986 and created a commission with jurisdiction over “all elected and appointed officials.”

In response to that ruling, Common Cause has proposed a constitutional amendment be put on the ballot to allow for a limited repeal of the “speech in debate” clause to restore the jurisdiction of the Ethics Commission. A resolution to put such a repeal on the ballot passed the Rhode Island House of Representatives on a vote of 68-5 last year before dying in the Senate. This year those resolutions are sponsored by Representative Michael Marcello (D-Scituate) in the House (H 5410) and Senator Edward O’Neill (I-Lincoln) in the Senate (S 634).

The crux of the ACLU’s argument against our amendment is that the Ethics Commission as an “unelected body” should not have their jurisdiction restored because they have the power to “adopt a legally enforceable code of ethics.” This should not be a matter of concern. There are many examples where the state cedes authority to appointed officials. The entire judicial branch, thankfully, is chosen exclusively by appointment. Appointed boards and commissions that perform quasi-legislative and quasi-judicial functions exercise much of the authority of the executive branch.

In fact, the “unelected” nature of the body is exactly what makes the Commission effective. The alternative used in many other states, and in the United States Senate, is an internal ethics body; the “self-policing” model. Those models fail because of a lack of independence. It is against human nature to punish oneself.

Mr. Brown bolsters his argument by citing a letter that Governor Carcieri sent requesting that the Commission dramatically broaden the definition of a conflict of interest. What Mr. Brown fails to mention is that anyone can write a letter to the Commission asking them to make changes to the Code of Ethics. Again, a perceived weakness is actually a strength. Any citizen of Rhode Island can file a complaint, or propose a regulatory change.

This is not just an academic debate over the meaning of representative democracy. Every citizen of Rhode Island should be concerned about the lack of jurisdiction of the Ethics Commission because conflict of interest and political corruption are real threats to our economic well-being. Recent history shows that the legislature needs a vigorous ethics watchdog. In the last decade now Speaker Gordon Fox, former Senate President Joseph Montalbano, and former Senate Corporations Committee Chair John Celona, were all fined by the Ethics Commission. A robust watchdog of legislative ethics is clearly needed.

Restoring the jurisdiction of the Ethics Commission over state legislators will also help to counteract Rhode Island’s image as a haven for corruption and lead to a stronger economy. Political corruption results in significant economic costs to states. In states where corruption is rampant, businesses face pressure to bribe public officials, and an uncertain business climate prevails. . Because of the higher cost of doing business, firms are discouraged from operating in corrupt states. Corruption is directly correlated to negative job growth. Restoring the Ethics Commission’s oversight of state legislators is not only good public policy, but also good for our economy.

While a dizzying number of initiative are being considered at the State House, we hope those doing the peoples’ business don’t forget this important issue. Until the jurisdiction of the Ethics Commission is restored the General Assembly operates without a needed mechanism for accountability.

Common Cause and Operation Clean Government call on Governor Chafee to reconsider Ethics Commission Appointment

On Thursday, April 14th, Common Cause and Operation Clean Government called on Governor Chafee to reconsider his recent appointment of a police chief to the Rhode Island Ethics Commission. Both groups feel strongly that an independent ethics watchdog should not have members who are also public officials. Here is our press release:

Common Cause Rhode Island and Operation Clean Government call on Governor Lincoln Chafee to reconsider his appointment of Barrington Police Chief John M. LaCross to the Rhode Island Ethics Commission. "We question the legality of Chief LaCross's appointment to the Ethics Commission given the statutory restrictions on who may be placed on this important body," says John Marion, executive director of Common Cause. "Our objection has nothing to do with Chief LaCross," Marion continues, "rather we are concerned with whether his appointment violates the state law barring those who hold public office from sitting on the Commission."

Section 36-14-8 (f)(1) of the Rhode Island General Laws prohibits anyone who sits on the Commission to "Hold or campaign for any other public office." Common Cause believes that statute disqualifies Chief LaCross from sitting on the Commission since Chief LaCross already holds a "public office" as the police chief in Barrington. The obvious intent of the prohibition from serving in another public office while serving on the Ethics Commission is to keep the members of the Ethics Commission as unbiased as possible, consistent with the Constitutional mandate (Article III, Section 8) that members of the Commission be both independent and non-partisan. The proposed appointment of Chief LaCross would contradict both the statutory prohibition and the intent of the framers of the Constitution and would be a significant departure from the goal of an independent Ethics Commission. "Since all elected and appointed state and municipal officials are subject to the ethics code, Operation Clean Government is concerned about appointing any serving public official to the Ethics Commission," says Margaret Kane, president of Operation Clean Government.

The Rhode Island Ethics Commission was created in 1986 by the voters of the state following that year's constitutional convention. Article III, Section 8 of the Constitution calls for an "independent non-partisan ethics commission." Common Cause has fought for more than two decades to ensure the Commission maintains its independence. Under state law only Governor Chafee can reconcile this problem, so Common Cause asks that he do so immediately, before Chief LaCross is sworn in as a member of the Commission.

Let's Move Forward on Legislative Staff Issues

In recent weeks there has been an uproar over raises for staff of the Rhode Island General Assembly. Handling personnel of the legislative branch has been an issue for decades in Rhode Island, and was part of a focus of commissions in both the 1980s and 1990s. As a result of the work of those commissions we have seen drastic reforms of other parts of the General Assembly, including the elimination of legislative pensions, and a downsizing in the number of lawmakers. It's time to finish the work by focusing on legislative personnel.

Common Cause, along with the coalition Citizens for an Accountable Legislature has proposed a possible solution. We propose the creation of a position classification plan by a joint commission of the General Assembly. Such a plan would help organize the staff in a transparent and accountable manner by requiring job descriptions, pay scales, and an organizational hierarchy. Using such a plan to manage its employees will allow the General Assembly to create a career ladder for all legislative employees.

Two Tales of Open Government

All eyes have been on the state of Wisconsin for the past few weeks as the state legislature pushed through a law restricting collective bargaining rights for public workers. On March 18th a County Court Judge issued an order preventing the Secretary of State from publishing the law because of a . . . open meetings violation. In the Judge's words:

“I think a legitimate question might be asked, how can something so apparently minor – the failure to provide timely notice prior to a meeting that led to the enactment of the 2011 Wisconsin 10 - how can a minor failure of notice really halt this bill in its tracks?

And my answer to that is - it’s not minor. It’s not a minor detail. . . [W]e in Wisconsin own our government. We own it. And we own it in three ways. We own it by the vote. We own it by the duty to provide open and public access to records so that the activities of government can be monitored. And we own it in that we are entitled by law to free and open access to governmental meetings, and especially governmental meetings that lead to the resolution of very highly conflicted and controversial matters.

That’s our right. And a violation of that right is tantamount to a violation of what is already provided in the Constitution, open doors, open access, and that northing in this government happens in secret.”

Meanwhile, on March 29th, the Rhode Island Supreme Court issued an opinion in a case involving the Central Falls receivership law. That law was introduced on June 8th, 2010 for the very first time, and signed into law three days later by the Governor on June 11th. Regardless of what you think about the substance of either issue, it's quite a stark contrast.

New House and Senate Rules

Tuesday, February 15th, the Rules Committees of the Rhode Island House and Senate will take up their rules for 2011-2012. There are a number of very significant changes, especially in the House Rules this year. You can read more about them here. Common Cause is very pleased with most of the changes to the House rules, including:

• Putting floor votes online
• Moving toward putting committee votes online
• Providing for an audio recording of all non-televised committee hearings
• Not allowing new bills to be introduced after 11:30 pm.

We remain skeptical of several rules changes, including the new inclement weather policy that allows the House to roll over to the next day all their committee agendas rather than post them again with 48 hours notice. We are also skeptical of the Senate rules change limiting public access to the floor 10 minutes prior to the scheduled beginning of the session.