Merit selection should mean just that

There has been a lot of talk lately about the recent nomination by Governor Chafee of former Senate President Joseph Montalbano to the Superior Court.  We’d like to take a minute to explain why this nomination is problematic.  Back in 1994 the voters of Rhode Island created a merit selection system for picking judges in our constitution.  This came after two consecutive Chief Justices of the Rhode Island Supreme Court faced impeachment hearings, and two lower level judges were convicted of crimes related to their positions on the bench. 

The merit selection system consists of an “independent non-partisan” Judicial Nominating Commission (JNC) that solicits and screens applicants for judicial vacancies.  The JNC holds public hearings on, conducts public interviews of, and holds a public vote that results in a list of 3-5 names being submitted as part of “a list” to the Governor.  The Governor has 21 days to nominate someone off that list and submit it to the Rhode Island Senate for Advice and Consent. 

That’s how the system works in theory.  In reality the JNC has filled with, among others, lobbyists and former political party officials.  The General Assembly has passed a “look back” law allowing the Governor to look at any list for a position on that court (Superior, District, Family, Traffic, Workers Compensation) from the last five years.  And Governors regularly take more than 21 days, sometimes years, to pick from those lists.

In the case of Mr. Montalbano he was not on a current list from the JNC, and his appointment was made many, many months after the JNC had finished its business.  Furthermore, he is currently a judicial magistrate, a type of judicial officer that whose ranks are often filled with close political allies of the Assembly (the three most recent appointees include the Speaker’s legal counsel and two former Senators) and that often serves as a farm team for judicial picks. 

Separating the General Assembly from the judicial branch was one of the explicit goals of reformers back in 1994.  This system clearly has not worked as anticipated because none of the principles are performing their assigned tasks as envisioned by those who had a hand it its design.  Those who aspire to sit on the bench and dispense justice on behalf of the state need to know that they have a fair shake at being appointed to a judgeship.  If Rhode Island is going to outgrow its reputation as an “I know a guy” state we need to fix this.  

Transparency in government doesn't just happen

We're not usually ones to seek a lot of credit, but we're going to make an exception this time.  The Providence Journal published an article titled "Officials disclose travel expenses" on Monday, April 29th in which they write, "The state Ethics Commission added that requirement last year after The Journal raised questions about who financed some recent state lawmaker trips."  They were referring to a new question on the financial disclosure form that elected and select appointed officials are required to file in Rhode Island.  The question is there because of a rule-making process the Ethics Commission engaged in during 2012 and requires disclosure of any out-of-state travel worth over $250 the public official took that was provided by a third party. 

That rule-making began because Common Cause Rhode Island sent a letter to the Ethics Commission requesting adoption of such a rule.  It took six months time, repeated testimony on our part, and the voices of dozens of Common Cause members to get this rule passed.  We're excited to see the new transparency this rule will bring, but would like to make sure you know, transparency in government doesn't just happen. 

A quick refresher on Separation of Powers

I joke sometimes that instead of Common Cause our organization should be called the Separation of Powers Legal Defense Fund.  Here’s why:

Next year will mark the 10^th anniversary of Separation of Powers being enshrined in the Rhode Island Constitution.  Prior to the constitutional amendments of 2004, in the words of our Supreme Court, “Rhode Island’s history [was] that of a quintessential system of parliamentary supremacy.”  A key change made to our Constitution in 2004 was Article IX, Section 5 which vests sole authority to appoint “all members of any board, commission or other state or quasi-public entity which exercises executive power” with the Governor.

Every year, like returning mosquitoes, we find legislation proposed in the Assembly that would violate that part of our Constitution and thus run afoul of the principle of Separation of Powers.  At Common Cause we see it as our role to swat down those efforts by reminding lawmakers of the boundaries on their authority created by Separation of Powers. 

Today’s example comes courtesy of Representative Patricia Morgan in the form of H 5316.  This legislation, being heard before the Committee on Health, Education and Welfare today, would create a six-person commission to review all mandates required of health insurance plans sold in Rhode Island.  The commission it creates would be appointed by legislative leaders and would create a list of insurance mandates that are “not essential” in the view of the commission.  The Department of Business Regulation would enforce that plan unless the General Assembly overrides the decisions of the Commission.

While reducing the number of mandates may be a laudatory goal, we have no position on issues of health care, this attempt to do so is unconstitutional on its face.  Quite simply, the General Assembly can no longer make executive decisions by appointing people to boards and commissions.  If the General Assembly wants to repeal health care mandates (mandates the General Assembly itself created by statute) they can simply repeal them.  Creating a separate legislatively controlled commission to direct the executive branch to do so just can’t be done.

Almost ten years after an overwhelming majority of voters in Rhode Island voted to put Separation of Powers in our guiding document it’s scary that legislators still can’t find the boundaries between the three branches of our government. 

On accessibility and transparency

Today should be a very special day for good government in Rhode Island, but it’s not. With the announcement that the General Assembly will immediately start live streaming floor sessions and (some) committee hearings we as a state are making a giant leap forward. We will vault from last place among the 50 states to a leader. A lot of people that no one ever hears about made this possible, including Tom Falcone who runs the Joint Committee on Legislative Services, Philip Carlucci who runs Legislative Data Systems, Derek Hayes who runs Capitol TV, as well as their employees who made this happen. It’s a good day for them, and they should be proud of the work they do.

Why isn’t it a great day? Because while we have added a layer of accessibility to our General Assembly, there is still a lack of transparency. Allowing people to see what happens inside cramped committee rooms late into the evening is good. But if what is occurring in those rooms is being orchestrated elsewhere, behind the scenes, so that committee actions are only a facade, then all the accessibility in the world still won’t bring us closer to transparency. We believe that for democracy to really flourish in Rhode Island the actions of a democratic body need to be honored, even if it didn’t fit a certain script. That’s why we continue to ask the House leadership to reverse their decision to nullify the vote last week on H 5498 and bring the resolution to a vote on the House floor. If the resolution needs more time, recommit it to committee, but do so with a vote of the elected representatives of the people.

'We have to fix that'

On November 6th, 2012 Rhode Island voters saw lines at the polls that were longer than any in recent memory.  Common Cause Rhode Island sought to document what happened that day.  In this report titled, 'We have to fix that,' Common Cause examines the possible sources of those lines and provides a detailed roadmap for fixing the problems that plagued our elections.  If you care about our democracy, you must read this account of what went wrong and join us in seeking solutions.

For real transparency we need to slow down

Kudos to the Economic Development Corporation (EDC), RI House and Senate for helping the Rhode Island Public Expenditure Council (RIPEC) with a new bill tracking system.  More tools for the public to follow the legislative process is an important win for transparency.

It should be noted, however, that even the best bill tracking (and we've had an internal system since 1996) is of little use when legislation flies through the process in the final days of the session.  If an amendment emerges and is voted on within minutes, that doesn't help the business community, the public, or even the legislators being asked to take the vote.  That's why Common Cause has proposed a rule for the House and Senate to hold amendments for 48 hours in committee before any vote. 

Transparency is important, but a process that allows citizens to take advantage of that transparency to make their voices heard in our policy process is even more important. 

Is it time for a constitutional convention in Rhode Island?

On Saturday, the Providence Journal published an article about the possibility of a constitutional convention in Rhode Island.   In 2014 there will be a question on the ballot asking the voters of Rhode Island whether they want there to be a constitutional convention.  It's a very important question, and Common Cause Rhode Island will spend a lot of time in the next year considering our position on the issue. 

Historically we have opposed these questions, for a variety of reasons.  Foremost, we worry that opening up our basic governing document will lead to mischief.  Many of our most important reforms, including the Ethics Commission, public financing of elections, and merit selection of judges, might be put at risk.  Likewise, civil rights issues might be put up for a popular vote as a result of a convention and that is a dangerous proposition.  For these, and other reasons, a constitutional convention is potentially problematic. 

On the other hand in 2009 the Rhode Island Supreme Court declared that two different sections of our Constitution, the speech in debate clause and the ethics amendment, are in conflict.  As a result, the Court stripped the state Ethics Commission of jurisdiction over the General Assembly.  The only way to remedy this conflict is through a constitutional change.  Until this point the Rhode Island Senate has stood as a barrier to the people of our state fixing our Constitution.  Unless the Senate sees fit to put a question on the ballot a constitutional convention may be the only way for the people to exercise their right on this matter. 


Furthermore, there are other reforms, important ones, the might be achieved at a convention.  At the top of that list is redistricting reform.  Over the decades we have seen ample examples of why the General Assembly cannot be trusted to draw its own boundaries.  Taking that power away from the legislature is not going to be easy, and a constitutional convention is the most likely scenario for achieving real change. 

As you can see, we've been thinking a lot about this question.  As supporters of Common Cause Rhode Island we want to know what you think as we deliberate.  Please feel free to leave comments here or reach out and email us, call us, or stop on by.