PART 1 of this article covered the origin of Issue No. 3 HJR1009 and the proposal’s plan to use ethics reform as the excuse to weaken term limits and to get higher salaries for legislators and elected official of the executive branch. Part 2 examined the proposal’s payback to the legislature. Read (Part 1) or (Part 2)
This final part examines the proposal’s ethics provisions and a deceptive title.
PART 3 – ETHICS AND DECEPTION
Although I have experience in writing ethics laws for the legislature, I will not write much about the particulars of the ethics provisions in this constitutional amendment. Why? Because I am now a registered lobbyist and it seems to me to be a conflict to write about lobbyist provisions. On the other hand, I don’t spend even a penny on legislators and there is nothing in the proposal that would have an impact on my role.
No reason or benefit to putting the provisions in the Arkansas Constitution. My primary purposes are to point out that ethics is being used as an excuse for bigger issues, and to show that if the legislature had really wanted to pass these ethics provisions it could have done so in 2013 by a simple bill.
Why put the ethics provision in the constitution? It wasn’t to make it harder to change the ethics provisions. Currently the legislature can pass ethics legislation by a 2/3rd vote. (The 2/3rd requirement applies because our ethics law was passed as an initiated act of the people.) Although, the proposal puts ethics in the constitution, it also allows the legislature to change the provisions with a 2/3rds vote. Allowing the legislature to change a constitutional provision by law is not unheard of, but allowing the legislature to change so much is quite unusual.
Summary of the ethics provisions. The ethics provisions in the proposal are a compromise version (or weaker version) of what had been proposed by Regnat Populus 2012. Here is a short summary from the Bureau of Legislative Research concerning the general subjects included in the ethics provision: “The proposed amendment to the Arkansas Constitution contains various provisions concerning elected state officials, including a prohibition on certain contributions, such as contributions by corporations, to candidates for public office; a requirement that a former member of the General Assembly shall not be eligible to register as a lobbyist until two (2) years after the expiration of his or her term of office; a prohibition on members of the General Assembly and elected constitutional officers of the Executive Department accepting gifts from lobbyists;”[i]
Arkansas Ethics Commission beware! Before closing this section I want to mention one oddity in the proposal’s ethics rules. The proposal only requires a majority vote to amend subsection (c) of § 30. The subsection applies to two things: (1) The penalty for violating the ethics provision, which seem fine; and (2) The Arkansas Ethics Commission’s jurisdiction over these ethics provisions. Under current law it takes a 2/3rds vote to make a change to the Arkansas Ethics Commission’s jurisdiction. So, why make it easier to take away their jurisdiction over these ethics rules?
REVISITING THE TITLE
Now that you know more about the proposed constitutional amendment lets revisit the title that would appear in the constitution: “The Arkansas Elected Officials Ethics, Transparency, And Financial Reform Amendment Of 2014”. Do you see anything in there about salary increases or weakening term limits? Neither do I.
Next let’s look at the full title of HJR1009 and see if that helps.
TO AMEND THE ARKANSAS CONSTITUTION CONCERNING ELECTED STATE OFFICIALS; PROHIBITING MEMBERS OF THE GENERAL ASSEMBLY AND ELECTED CONSTITUTIONAL OFFICERS OF THE EXECUTIVE DEPARTMENT FROM ACCEPTING GIFTS FROM LOBBYISTS, AND DEFINING KEY TERMS RELATING TO THAT PROHIBITION; PROHIBITING MEMBERS OF THE GENERAL ASSEMBLY FROM SETTING THEIR OWN SALARIES AND THE SALARIES OF ELECTED CONSTITUTIONAL OFFICERS OF THE EXECUTIVE DEPARTMENT, JUSTICES, AND JUDGES; ESTABLISHING A SEVEN-MEMBER INDEPENDENT CITIZENS COMMISSION TO SET SALARIES FOR MEMBERS OF THE GENERAL ASSEMBLY, ELECTED CONSTITUTIONAL OFFICERS OF THE EXECUTIVE DEPARTMENT, JUSTICES, AND JUDGES; ESTABLISHING THE APPOINTMENT PROCESS FOR MEMBERS OF THE INDEPENDENT CITIZENS COMMISSION, AND PROHIBITING MEMBERS OF THE INDEPENDENT CITIZENS COMMISSION FROM ACCEPTING GIFTS FROM LOBBYISTS; PROHIBITING CERTAIN CONTRIBUTIONS, INCLUDING CONTRIBUTIONS BY CORPORATIONS, TO CANDIDATES FOR PUBLIC OFFICE; PROHIBITING A MEMBER OF THE GENERAL ASSEMBLY FROM REGISTERING AS A LOBBYIST UNTIL TWO (2) YEARS AFTER THE EXPIRATION OF HIS OR HER TERM; AND ESTABLISHING TERM LIMITS FOR MEMBERS OF THE GENERAL ASSEMBLY.
This is a little better. At least it informs you that there will be an Independent Citizens Committee to set salaries and that the proposal will “establish term limits”. This still is not descriptive of the provisions benefiting legislators. If this title had been used on an initiative by the people, the weak description would likely be challenged in court, assuming the title even managed to get past the Attorney General. A legislative proposal is harder to challenge because constitutional amendments proposed by the legislature only have to survive a test of whether the title amounts to manifest fraud.
When Representative John Burris suggested a double salary in exchange for ethics reforms, he was met with harsh criticism. Representative Sabin and Senator Woods took Burris’ idea of exchanging ethics for benefits and went a step further by also including weaker term limits. Yet, it doesn’t seem that many people have noticed.
Whether the ethics portion of the proposed amendment is good, bad, or just so-so is not the question. Whether the legislators who voted for HJR1009 had good motives or bad motives is not the question. The question is: Does the state really have to weaken term limits and remove restrictions on salaries in order to buy ethics reform?
ARKANSAS VOTERS WILL DECIDE IN NOVEMBER 2014.
About the author: David Ferguson is the Government Relations Director of Conduit For Action. He retired as Director of the Bureau of Legislative Research in 2012, after a 32 year career with the bureau.
David’s legislative experience relevant to this article includes: (1) Experience with ethics legislation, beginning with assisting the Governor’s Blue Ribbon Task Force on Ethics in 1987 & 1988, and which eventually resulted in an Initiated Act that became Arkansas’ ethics law. The law, as amended, is still in force today. He worked on most Arkansas ethics legislation for the next 10 to15 years; (2) He wrote much of Amendment 70, concerning salaries of Executive and Legislative Branch officers; (3) He served as a legislative liaison to the judicial committee that wrote Amendment 80 which applies to judicial salaries; and (4) He researched and interpreted term limits provisions for legislators.
[i] “Summary of General Legislation, Bureau of Legislative Research, 2013