The older I get, the more I am convinced of the truth of the oft-repeated maxim suggesting money is at the heart of much evil.
World and state headlines today provide vivid examples of this problem:
Too often, leaders are more intent on securing their next campaign dollar than in fighting for noble reform.
We, the public, must speak up, insisting this malignant reign of money be stopped. If it continues unabated, not only do the abusers deserve fault, but we who watch passively must also share the blame.
Most of us have driven a vehicle with wheels that need to be balanced. Unbalanced wheels cause vibrations as the wheel wobbles. This condition also causes wear and tear on the vehicle and its suspension.
The Mormon handcart pioneers knew the value of good, sturdy wheels, especially the Willie and Martin handcart companies of 1856. They set out with inferior handcarts that cost many of them their lives. The spokes and axles needed to be made of strong wood. Ever see a wheel with all the spokes on one half of the wheel and not the other? It doesn’t roll very well.
What does all this have to do with today’s world?
Fast forward from 1856 to 2001, when the Utah Legislature redistricted Utah in what the Wall Street Journal declared was “a scam perpetrated against the people of Utah.” The Legislature gerrymandered the state’s legislative and congressional districts, essentially creating a supermajority on Capitol Hill. It is a supermajority that can pass bills at will. Wobble!
Shortly after that first wobble came the infamous school voucher bill. The majority of Utahns were against taxpayer-funded private school vouchers. They joined in a state initiative that repealed the voucher law. Wobble!
Members of the Legislature then put their heads together and passed a law that made it more difficult to place a statewide initiative on the ballot. Wobble!
In 2007 a member of the current State Redistricting Committee was able to gain passage of a bill that allowed owners of the Powder Mountain Ski Resort to create their own city. This was against the wishes of the people who were incorporated into the new city. Wobble!
Add to school vouchers and taking away the people’s ability to make law, several scandals and rumors of scandals. Legislators were being offered $50,000 in campaign funds if they voted for or were absent during the voting for school vouchers. Wobble!
One member of the Legislature attempted to bribe his opponent in a statewide race. Wobble!
The president of the Senate got pulled over for driving under the influence. Wobble!
A member of the Legislature resigned after it was revealed that, prior to becoming a lawmaker, he had been naked in a hot tub with an underage female and had paid out hush money to keep it a secret. The 2010 Legislature gave him a standing ovation. Wobble!
During the 2011 legislative session, our legislators passed HB477, the Government Records Amendment. The bill made it more difficult to obtain government records. Every majority member of the House of Representatives cosponsored the bill. The news media brought the issue to the attention of Utah’s citizenry, which came out strongly against the bill. Under public pressure, the Legislature repealed the law. Wobble!
Another bill, SB44, ended the independence of the state’s Constitutional Revision Commission. Now the commission will function only if called upon by the governor, the Legislature or the Legislative Management Committee. Essentially, this meant that the Legislature can make amendments to Utah’s Constitution without expert, independent advice on their constitutionality. Wobble!
SB165 shortened to 45 days the amount of time after a law is passed to file a citizen initiative to repeal the law through a vote of the people. The legislation was filed on the tail of two initiative petitions, Fair Boundaries and Utahns for Ethical Government. The first would have set up independent commissions for redistricting Utah’s congressional, state Senate, state House and state school board districts. The latter would have established an independent ethics commission.
Both initiatives were supported by an overwhelming majority of Utah citizens and were ignored by the Legislature. Wobble!
Our state Legislature is once again in the process of redistricting Utah. Utahns have the opportunity to speak up at public Redistricting Committee meetings across the state. The schedule is posted on the Legislature’s Website: http://www.redistrictutah.com/ and various other places.
Several organizations are partnering to ensure that Utah’s government remains a government of the people and by the people. Attend the public meetings and voice your concerns before we lose Utah: Wobble! Wobble! Wobble! Crash!
Mark Sage is on the Fair Boundaries board and unsuccessfully ran for the Utah House from District 12 in Roy.
The House and Senate have passed substitute SB 165 (tightening the requirements for citizen initiatives and referenda) without allowing a hearing on the substitute bill or any thoughtful deliberation. House leadership pulled a fast one by bringing the bill from the Rules Committee to the top of the debate board without any notice to legislators themselves. The bill makes it more difficult for any citizen initiatives and referenda to make it onto the ballot in the future.
The bill was no doubt sold to legislators as a bill clarifying ambiguity in the current election code. Clarifying the ambiguity about signature deadlines was fair enough, but the legislation did so in a way that shortens the time available for signature gathering. And the bill goes far beyond that. Especially onerous were also the following provisions:
The passage of this bill is offensive for two primary reasons. First, because of the surprise tactics employed to rush this bill through both Houses of the Legislature. Once again the legislative leadership shows its disdain and distrust of the public and of their own members who might like the opportunity to discuss the bill in committee and gather public input. Second, because portions of the bill increase the difficulty of gaining the required number of signatures on initiatives and referenda. It is extremely difficult already for grass roots groups to organize and collect the required number of signatures across the state.
What is absolutely clear from the passage of this bill is the Legislature’s intent to make it virtually impossible for initiatives and referenda to be on the ballot without seeking professional signature gatherers and raising hundreds of thousands of dollars.
Is this really the way democracy is supposed to work, even in a constitutional republic? If so, then we need to elect new legislators who understand that they are servants — not manipulators — of the people.
Dixie S. Huefner is chairwoman of Communications Committee for Utahns for Ethical Government.
Utah Republicans, like their counterparts throughout the nation, had a stellar election year in 2010, but the conservative armada failed to slay one of its most coveted targets — Utah State School Board member Kim Burningham.
The fact that the right-wing arm of the Republican Party spent so much time and resources trying to defeat a school board member — who used to be a Republican legislator — in a nonpartisan race says much about the priorities and the agenda of that cabal. The fact that all its might could not defeat the incumbent board member speaks to the disconnect between that conservative wing and rank-and-file Republicans when it comes to education issues.
Burningham has been a target of the Republican Party power base since, as school board chairman, he opposed the Legislature’s attempt to give tax-credit vouchers to parents who enroll their children in private schools. He supported the citizens referendum that repealed that legislation in 2007.
But there are other reasons not related to education that made the GOP want Burningham’s scalp.
He is hated by the right wing in the Legislature for his leadership role in Utahns for Ethical Government, which is attempting to put an initiative on the ballot to create an independent ethics commission. To counter that effort, the Legislature passed its own ethics reform legislation that voters approved Nov. 2 as a constitutional amendment.
And he supported an initiative to take the authority to create legislative and congressional districts out of the hands of the Legislature.
Burningham represents Bountiful’s District 5 on the school board, and his opponent, Nicole Toomey Davis, benefited from the vast resources of the Republican Party and its right-wing auxiliaries such as the Eagle Forum and Parents for Choice in Education.
He earlier survived an attempt by that right-wing coalition to keep him from even appearing on the ballot through the state’s flawed nominating process.
Then, shortly before the election, a memo went out to Republican legislative chairs in Davis County ordering them to distribute a meet-the-candidate invitation to all the precinct chairs with Davis as the guest of honor.
The call to battle was sent by Dalane England, vice president of the Utah Eagle Forum. She also hosted the event at her home.
Davis also was a guest on the Saturday morning Red Meat Radio program on K-TALK. The show’s conservative co-hosts, Sen. Howard Stephenson and Rep. Greg Hughes, both R-Draper, lavished praise on her and heaped vitriol on the despised Burningham.
Davis also was the beneficiary of an e-mail sent to Davis County constituents by Sen. Dan Liljenquist, R-Bountiful, urging them to vote for the challenger against Burningham. Because the e-mail was sent just two days before the election and Liljenquist was actively campaigning among his Republican Senate colleagues to replace Sen. Michael Waddoups, R-Taylorsville, as Senate president, the last-minute endorsement was seen by some as an attempt by Liljenquist to endear himself to the GOP’s right wing.
Davis’ campaign received $1,000 from House Speaker David Clark, $500 from Arena Communications, run by long-time Republican Party operative Peter Valcarce, and $2,500 from the Utah Tech PAC, whose board members include former Republican legislator and Eagle Forum darling Jeff Alexander and former GOP State Chairman Stan Lockhart.
Despite all that, Burningham won with nearly 60 percent of the vote in a county that elected Republicans by a wide margin in every partisan race. The voters, just as they did in the voucher referendum three years ago, rejected their own party’s position on education, choosing instead to stick with those, like Burningham, who argue for ways to increase revenues to bolster public education.
For 25 years, Utah has been in the vise-like grip of one political party: ours. If that were characteristic of the Utah-BYU football rivalry, it would be one thing, but whatever your party affiliation, if you care about good government, the mostly noncompetitive nature of Utah politics should be alarming.
No political party has a monopoly on virtue, and in theory, parties should be a check and balance on each other. But 25 years of veto-proof legislative majorities and the gerrymandered stranglehold that comes with them mean that voters sleepwalk through elections at their peril.
The I-15 bid debacle should be a wake-up call. To his credit, Gov. Gary Herbert asked the state auditor for a thorough audit of the Department of Transportation. But when queried by the Deseret News, the state auditor, another good Republican, said, “Am I going to look at the campaign relationship? No. We don’t audit political accusations, political claims, political problems.”
The few facts that are publicly known show a problematic sequence of discussions in the governor’s office at the Capitol between a candidate and contractors, thousands of dollars in campaign contributions, lucrative contract awards, a $13 million secret payoff to a losing bidder, and a bid process that was altered after the bidding had closed in order to give the winning edge to the big contributor. When that state agency head says, “I just never really anticipated this sort of attention to our little department,” that obliviousness suggests incompetence; and in any other environment it would be a résumé-producing event.
Let’s be clear. While these facts came to light in a political campaign, that doesn’t change their fundamental nature. The heart of the issue is whether campaign money improperly influenced the contracting process and whether campaign fundraising is being run out of public facilities. These aren’t partisan questions: They’re honest government questions, and if it isn’t the state auditor’s job to follow these issues, whose is it?
Utahns for Ethical Government has asked Herbert if this episode has prompted some recommendations that would boost our D-minus in ethics laws to an A. So far, he’s offered none. We’ve asked if he would agree to a mutual, voluntary limit on campaign contributions. He has responded that he believes contribution limitations are a violation of free speech. Curious. The U.S. Supreme Court has long upheld the constitutionality of contribution limits, as recently as the Citizens United case.
We’ll continue to ask these questions, and lest this seem a gotcha game, here are some recommended answers. First, it’s time to stop pretending that there is no relationship between big campaign contributions and the expectation of big favors, and it’s time to stop pretending that contribution limits undermine free speech. They’re a legitimate protection against election corruption, as courts have held over and over. The two gubernatorial candidates should be examples of ethical leadership and agree to voluntary contribution limits in the current campaign.
Second, adopt the Illinois rule: If you contract with state government, you may not contribute more than $100 to a state campaign.
Third, if any state agency doesn’t like the bids it receives, the director’s staff should not be permitted to jigger the bid to favor any bidder. Start the process over and stay fair.
Fourth, no state property should be used for political campaigning or fundraising, and no state employees should be involved in political campaigning or fundraising on government time. Not even Congress tolerates this, and that’s saying something.
Fifth, no state employees should be taking lobbyist or contractor-funded “fact-finding” trips.
Sixth, stop ignoring the election law already on the books, and enforce the prohibition against running political campaigns through political action committees. It’s hard to be the enforcer when the governor’s campaign is also a violator.
The $13 million payoff may have been entirely justified to avoid more expensive litigation, but there was no litigation in progress. Nevertheless, it is inconceivable that a public administrator worth his salary would fail to tell his boss, in an election year, of a $13 million glitch that would be embarrassing to explain in front of a TV camera. The only thing more inconceivable is that a boss would tolerate it.
It shouldn’t take stronger ethics laws to prevent the kinds of lapses which have recently come to light. No doubt, all involved are “good” people. But the cozy system that has evolved over 25 years of one-party government, on autopilot, is not serving taxpayers well.
Karl N. Snow is a former Republican majority leader in the Utah Senate and a retired professor of public administration and management at BYU. David R. Irvine is a former Republican member of the Utah House and a Salt Lake City attorney. Both are members of the Executive Committee of Utahns for Ethical Government.
It is time for a reasoned look at the recent news of the $13 million payout to the loser in a $1.7 billion highway building project. I take Gov. Gary Herbert at his word, that he both accepted large donations from the winning construction firms and did not exert any influence on the outcome of the competitive bid.
Gov. Herbert says that he intends to run a transparent administration, and I want to believe him.
I have been in a state agency leadership position in a neighboring state. In that department, every single dollar was appropriated for a specific program or purpose. And we were accountable for spending that money exactly as anticipated by the state budget passed by the legislature.
Had we fouled up a contract bid process, any compensatory amount paid to a losing bidder would have required a supplemental appropriation by the Legislature. A large settlement would be grist for the political mills. Heads would have rolled.
So how is it that the Utah Department of Transportation had 13 million disposable dollars not otherwise appropriated for a legislatively intended purpose? Where did that money come from? How was it shifted from the appropriated budget to this payoff without many people within state government knowing about it?
Whoever those people were, didn’t they clearly subvert the budget appropriation process prescribed by Utah law? Why have they not been called to account? (Going to the proverbial woodshed is not the same as being held accountable, nor does that provide transparency for the public.)
If Herbert is to make a plausible assertion of running a transparent administration, he needs to open the records about this episode. The attorney for the construction companies that lost the bid and received the $13 million payout has said that there is a tale to tell related to the bid process.
The governor should release all parties from the confidentiality clause related to the $13 million settlement and hold a press conference with all parties and documents present. Let the chips fall where they may. Because I believe what the governor has said, I am confident that his integrity will be upheld by whatever is revealed in the documents or at the press conference.
More important, the public will learn whether their tax dollars have been managed well by UDOT.
Joseph Q. Jarvis is a physician, chairman of Republican Legislative District 24 and a member of the Republican State Central Committee.
“Leadership Begins with ‘Follow Me.’” That’s a phrase plastered everywhere at the Infantry Training Center at Fort Benning, along with the admonition for would-be officers that “the commander is responsible for all his unit does or fails to do.”
The person in charge sets and enforces the standards for the organization. How well a boss succeeds is the difference between being a leader and being a placeholder.
A 2008 Pew Center report gave Utah an A-minus for being a well-managed state, but little has been said about the D-minus for our deficient ethics laws. There are headlines about a possible “pay-to-play” linkage between contributions to the campaign of Gov. Gary Herbert and multi-million dollar contract awards. The state paid $13 million to settle an unsuccessful bidder’s complaint — a settlement the governor says he didn’t know about.
More surprise headlines followed about a $231,000 loss to taxpayers from a UDOT employee’s ethics lapses and the failure of many political party entities to file required financial reports with the lieutenant governor.
Herbert insists that there have been no trades of cash for favors, but to focus only on that is to miss the real issue, which is a systemic failure by the executive and legislative branches to guard against the appearance of corruption. No one set or enforced the kinds of ethical standards that public officers owe the citizenry. This disdain for “how things look” is as corrosive of public trust as payola, and that’s what translates to a leadership failure.
It’s inexcusable that companies seeking lucrative state contracts are permitted to make unlimited campaign donations to the governor and legislators. It’s also inexcusable for these state officers to be requesting businesses and individuals to make donations in excess of the federal election law limits.
It’s inexcusable that donors aren’t required to identify their occupation or employer. It’s inexcusable that a state contract can be awarded to any bidder who has made a large campaign contribution to a state officer within six months prior to submitting a bid, or that a contribution is allowed to be made within six months of receiving a contract award.
Until the Legislature adopts those kinds of basic reforms, politicians and contractors will play the game for all it’s worth; there will be more of what was reported last week, and public confidence in politics and politicians will sink ever lower.
It’s no coincidence that voter participation in Utah is now down to 48th in the country. People perceive that their vote doesn’t matter — and the perception of “you scratch my back with money and I’ll scratch yours with favors” has as much to do with voter disgust as anything else.
Our D-minus in ethics is well-deserved. A recent poll showed 78 percent of Utahns favoring limits on campaign contributions. Herbert obliged by voluntarily limiting donations to his campaign to $50,000 per donor, and not a penny more. Our Legislature invites the appearance of a government for sale: 46 states limit campaign contributions, but not Utah.
Some will pish-posh the idea of any connection between the timing of large campaign contributions and the award of largesse, or they’ll claim that a challenger does the same thing. However, challengers don’t typically have the loaves and fishes which an incumbent can dispense, and therefore it’s not the same thing at all. It’s also unrealistic, and unfair, to expect any candidate to operate under a different standard than the law allows for all candidates. That leads to the problematic question of who should go first.
Clearly, the Legislature has no intention of going first. That’s why 115,000 of us signed an ethics reform initiative petition to give voters a chance to pass a meaningful reform law.
However, there’s an opportunity here for a real leader to step up to the plate and show real leadership. It won’t work if only one candidate agrees to a voluntary contribution limit, and it won’t work if one can diss the others by claiming grandstanding.
A real leader knows the importance of making a serious issue an equal win-win. The guy in charge of loaves and fishes would take some risk by going first; but if following the federal election contribution limits is OK for our federal candidates, who also run statewide, why aren’t those same limits acceptable for those who would be Utah’s chief executive?
David R. Irvine is a Salt Lake City lawyer, a former Republican legislator, and one of the drafters of the Utahns for Ethical Government initiative petition.
The Tribune’s Aug. 19 editorial (“Ethics initiative: Lawmakers should follow lead”) says that while our initiative contains needed substance, it can’t go on this year’s ballot and Utahns for Ethical Government should trash more than 115,000 signatures we’ve submitted, starting over to guarantee “freshness.”
That won’t happen because of a politically tinged decision by the lieutenant governor. The same issues will still be around in two years.
Paul Neuenschwander of the lieutenant governor’s office claims it is “clear” if we don’t meet the April deadline we “have to start over.” We disagree. Readers don’t need to take our word. Read the statute [UCA 20A-7-202(4)(a)]: “the sponsors shall qualify the petition for the regular general election ballot no later than one year after the application is filed.”
Utahns for Ethical Government announced in April that we would require our full statutory year to qualify for the ballot and so advised the lieutenant governor. Our application was filed on Aug. 12, 2009. The necessary signatures were submitted by the one-year deadline.
Neuenschwander pretends that the one-year part of the statute doesn’t exist. He only likes to cite subsection 202(4)(b), which indeed says that if the sponsors fail to qualify for “the regular general election ballot” after circulating the petition and gathering names for a year, they must start over.
The April 15 deadline is provided in a different subsection, UCA 20A-7-206(1), but only as to the general election year in which the initiative, after qualifying, may come up for a vote.
When it became clear that we couldn’t get on the November ballot by April 15, some in that office encouraged us to pursue signature gathering for a year. What changed? The statutory language did not, and there were no intervening court decisions interpreting that language.
The political amperage of the initiative, however, has gone through the roof. Why? I suspect the underlying fear is that our initiative is a real threat to Utah politics’ money culture. Frankly, money is power. Our initiative prohibits corporate and union contributions to legislative campaigns — currently the source of more than 80 percent of what legislators receive. We also propose to limit campaign contributions by political action committees and individuals to the same levels ($5,000 and $2,500, respectively) allowed in federal elections. Presently, Utah has no limits on campaign contributions.
The prohibition against using campaign funds from lobbyists to buy support in legislative leadership elections is vital to the initiative. In a state of mostly single-party and not terribly competitive legislative districts, this intersection is where good people can easily begin to rationalize their moral compasses away from true north. It’s where private interest really starts to overpower public interest — because the pockets that put up the money (and legislators typically do not) want something in return.
A year ago, it appeared the lieutenant governor was poised to determine that our petition was “patently unconstitutional” and to decline to approve it for circulation. Following a meeting with us and our lawyers (after which that direction was reversed), a highly placed individual in that office said, “You would not believe the pressure we have been under from legislators to spike this thing.”
Actually, we do believe the pressure has been intense. We believe, as do 115,000 Utahns, that our petition is the means for much-needed reform in the Legislature; however, we doubt the Legislature will ever adopt the campaign finance restrictions we propose. If the corrosive influence of money in Utah politics is to be limited, the voters must do it themselves.
Initiative is a constitutional right; but some legislators hate it and will obstruct it to death wherever possible. Our volunteers have slogged through a very hard year, gathering signatures in the nigh-impossible jumble of Utah’s badly gerrymandered state senate districts. It wasn’t as though they lacked for other, more interesting things to do with their time.
Easy for Neuenschwander to say, “Oh, just start over.” We wonder if another obscure part of state law lies beneath his smile. Does he know that failure to qualify within the 12-month window also means that a similar initiative cannot be run for another four years [UCA 20A-7-202(5)(f)]?
This is an issue to be decided in the courts.
The best leadership results when people of high integrity demonstrate an impressive example of skill. Followers are eager to have such people take the lead. Unfortunately, in many instances leadership instead has been bought by favoritism, family relationships and money.
The Utah Legislature has had all kinds of leaders. Some of these rose to the top through excellence. Others have risen to the top by other means. When such is the case, the people pay the real price.
One former speaker of the Utah House, Greg Curtis, served in that position for two terms using strategic placement of money to assure election.
Curtis amassed a bank account in excess of $300,000 largely contributed by lobbyists. According to Bob Bernick Jr. in the Deseret News (Jan. 8, 2008) Curtis “gave much of his campaign donations to fellow GOP house members…hopefully, endearing them to vote for him as speaker one more time.”
Sen. Sheldon Killpack was a leader in the Utah Senate before his resignation was prompted by a drunken driving charge. Many expected that he would run for a leadership position again. He gathered nearly $200,000 in contributions, coming heavily from lobbyists. As the 2008 election approached, Killpack contributed to many fellow senators or candidates who were up for election including $5,000 to Dan Liljenquist; $5,000 to Steve Urquhart, $3,000 to Mark Madsen, $5,000 to David Hinkins, $5,000 to Carlton Christensen, $3,000 to Alan Christensen, $10,000 to Carlene Walker, and $5,000 to Scott Jenkins. Alliances cemented by money have become commonplace in the Utah Legislature.
House Speaker David Clark intends to run again for speaker. May that explain why Clark is currently giving donations of money to potential Republican members who will later vote for their leader? Or is he simply generous? (In any event, he’s not spending his money; it comes from lobbyists and special interests.)
Even before the primaries were held, Clark had started peddling dollars to potential members of the House. Clark’s June 15 financial report indicates that since the first of the year, he has received more than $120,000, the majority from special interest groups. He has contributed between $1,000 and $3,000 to at least a dozen other men who were running for office.
The candidates were located throughout the state from Logan to Murray and from Draper to Kanab. Most of them have never served before, and for some reason Clark was eager to help them get elected.
Some recipients cover the bases. They accept donations from legislators who may end up vying against one another in election competitions. For example, Kenneth Ivory, who is running for office in the West Jordan area, accepted a $3,000 contribution from Clark, but also accepted a smaller contribution of $250 from “Friends of Carl Wimmer.” Wimmer has been mentioned as a potential challenger to Clark.
Verifying all the giving that has taken place from potential leaders to legislative candidates is not yet possible. Wimmer, for instance, reports zero campaign expenses or contributions. Although most legislators did file a report of campaign expenditures due on June 15, several others (usually highly visible legislators like Wimmer) report no campaign expenditures.
I doubt those reports are true. Likely they are accepting contributions or sharing money through political action committees. Such committees are not required to submit reports with the same frequency as candidates. This may be a deliberate effort to circumvent the current campaign reporting law.
Because of the Utah legislative session’s brevity, and also because the leadership assigns legislators to committee membership, legislative leaders control much of what happens in the Legislature. Where lobbyists supply money, and leaders use that money to increase influence, much power is transferred to a few leaders and the lobbyists who influence them.
Leadership candidates dismiss suggestions about “purchasing votes” by arguing that they are friends helping friends. Perhaps. However, the insidious nature of these transactions is that the recipients of leader largesse then are hooked — they dare not cross the givers of money, lest the spigot be turned off.
“Party discipline” comes at a real price to the public interest, especially where donors’ private agendas come up for a floor vote. Curtis made a very public show of absenting himself from discussions about a deal involving the St. George airport which stood to earn a good deal of money for his employer. He didn’t have to be in the room; everyone knew what he wanted — and the price of opposing him.
Contributions from one legislator to another cited above are not illegal under current Utah law. The law needs changing. The safest approach would be to prohibit such exchanges of money. The Utahns for Ethical Government initiative petition does precisely that. If would-be leaders want to help their friends, they should do so from their own wallets, not somebody else’s.
Leadership should be earned by capable performance, not purchased.
Kim Burningham is a former member of the Utah Legislature, chairman of the Utah Board of Education and chairman of Utahns for Ethical Government.
The U.S. Supreme Court, in Doe v. Reed, soon will decide whether the names and addresses of those who sign an initiative petition must be disclosed to the public. State officials have defended compulsory disclosure of this information, arguing that citizens endorsing a petition for the ballot must be willing to accept the “consequences” for doing so. In their view, free speech shouldn’t be so free. We disagree.
Speaking anonymously is a venerable form of political expression, and a choice which enjoys First Amendment protection. Founding Fathers James Madison, Alexander Hamilton and John Jay understood that the freedom to remain anonymous was integral to the fundamental right to speak freely, and in fact exercised this right when they published The Federalist Papers under pseudonyms. They saw that their principles, however eloquently explained, might be eclipsed in a debate about who authored them. Writers such as George Eliot and A.S. Byatt have used pseudonyms or initials for names, so that their work will be valued on its merits rather than devalued on account of their identities as women. The Tribune‘s editorials contain no byline, giving them a collective, institutional force. They aren’t easily dismissed because “so and so, the publisher, is nothing but a lowdown” ... pick your epithet.
The “consequences” for those who have signed initiative petitions across the country have, in some instances, been dire. Signers have received death threats. Their homes and vehicles have been vandalized. They risk job losses or demotions when they will not conform to the political views of their employers, who have found their names by scouring the Internet. Because their addresses, as well as identities, are found on the petition, signers must accept the risk that they will be called at all hours of the day and night, or that picketers will appear on their doorstep—all because they exercised the right to be wrong in their political thinking.
If it is in the state’s interest that the public must know about our endorsement of a petition, so that these “consequences” can follow, then, by logical extension, all of our political choices—our votes in caucus meetings, at political conventions and at the ballot box itself—should be subject to disclosure and scrutiny. Never mind that, in 1896, the Utah Constitution guaranteed the right to vote in secret, and that, in 2003, the Utah Supreme Court equated the right to sign an initiative with the right to vote. Some of our state officials despise these constitutional protections and judicial precedents. Do they long for a darker age, when the test of civic virtue was how much harassment voters could endure for exercising their rights of conscience? After all, if you’re not willing to be badgered for your political thoughts, you must not be much of a real American.
It is said that citizens endorsing a petition can’t have any reasonable expectation of privacy, since in signing they know that their names will be public. The circularity of this argument is obvious. But for the state’s coercive disclosures, we could and might choose to exercise our rights of political conscience privately rather than publicly.
John Hancock was willing to be a martyr for his principles and signed the Declaration of Independence with a flourish that resounded through the ages. Of course, he was acting as his colony’s delegate to the Continental Congress and in a representative, rather than an individual, capacity, a fact which, where accountability is concerned, makes all the difference.
The choice for individuals, acting for themselves rather than others, to speak privately is all important. Justice Antonin Scalia, at oral argument in Doe v. Reed, had some fine rhetoric about the need for citizens who engage in politics to show “civic courage” by “standing up” and “being counted.” The good justice forgot, however, that we applaud acts of courage only because they are products of volition. Behaviors which are compelled by the state—as where citizens are forced to disclose their voting preferences—don’t reflect much if any virtue, civic or otherwise. (And speaking of “standing up” and “being named,” let’s not forget that, in Bush v. Gore, the most controversial decision of this decade, a majority of justices, including Scalia, chose to write anonymously, hiding the true author behind a per curiam opinion.)
Voting on an initiative is the purest form of political speech, and we protect it with secret ballots and private voting booths. Signing a petition to get an initiative onto the ballot requires privacy for all of the same reasons. Utah’s initiative statute, however, denies this most fundamental, original, freedom of choice to its citizens; and that is simply wrong.
David R. Irvine and Alan L. Smith are Salt Lake City attorneys and two of the drafters of the legislative ethics initiative.
A little more than two years ago, in view of the capital’s iconic capitol dome, several Utahns sat around drinking cocktails and complaining about the Utah Legislature. Not about every single legislator; there are many who are sensible and well-meaning. Just the notorious ones, the ones with well-earned bad reputations.
It was after midnight and the blazing hot December day had finally given way to a balmy, pleasant evening. The palm trees moved hypnotically, sending a faint breeze across the swimming pool and among the lounge chairs we had arrayed near the outdoor bar. (I didn’t say we were in Utah’s capital.) A few Christmas trees winked from the windows of apartment buildings nearby.
Why on Earth in such wonderful circumstances so far from Utah would the conversation settle on what for many of us is just about our least favorite thing? What would possess a group of Utahns, on a tropical island on a December night full of rum and nice people, to arrive at what is probably Utah’s most embarrassing topic?
We were in Havana, the capital of Cuba, and its beautiful capitol, El Capitolio, bears a strong resemblance to Utah’s own capitol building.
Havana’s was built to house the country’s legislature, which it did until the Cuban Revolution changed everything. So since 1959 El Capitolio instead is home to the Cuban Ministry of Science, Technology and the Environment.
Utah is facing a little revolution of our own right now, and if Utahns for Ethical Government has its way, our Legislature will become a lot less embarrassing as a result. The group is a nonpartisan coalition committed to legislative ethics reform. This group of Democrats, Independents, Republicans and unaffiliated voters wants to establish a code of conduct for legislators, set standards for contributions to candidates and create an ethics commission—a kind of nonpartisan citizens panel to keep our folks on the Hill out of the back pockets of corporations.
The nearly universally beloved Olene Walker, former Utah governor and former Utah legislator, endorsed Utahns for Ethical Government’s initiative, pointing out Utah is one of only five states with no limits on campaign contributions. Further, we allow corporations to make donations to candidates even though such activity is banned by most other states.
The Utah Legislature put on a big show this past session trying to demonstrate that it can police itself, but everyone knows it can’t. The Trib ‘s editorial board said recently that even though 74 percent of Utahns approve of a cap on campaign contributions to legislators, we still don’t have one.
Until now, even if a legislator saw a corporation’s semitrailer-truck drive to another legislator’s house and start unloading cash by the pallet-load, he or she would be hard-pressed to do anything about it. Forty-some former Utah legislators have signed on to the ethics petition, and I think it’s because they know it simply can’t be done from within. So this revolution is up to us.
We only have until April 15 to sign the petition to get a bill on the ballot this fall. Sign the petition and you will help stem the flow of loose cash and special interest groups on Utah’s Capitol Hill. You will break the revolving door between the Legislature and corporate lobbyists.
I don’t want to storm our capitol and turn it into the ministry of science, technology and the environment or anything else, although that would be ironic on so many levels, but let’s try to get the Utah Legislature to be a little more accountable to the people of Utah.
¡ Que vive, Utahns for Ethical Government (http://www.utahnsforethicalgovernment.org)> !
Barb Guy is a regular contributor to these pages.
Don’t get me wrong. I love living here. My people came here on foot and knew the value of hard work. They still do. These are the people I want to be living around: organized, resourceful, independent. In a flood or an earthquake, Utahns know just what to do. I am so proud of our state!
I also love the way our state constitution insists on a balanced budget. The joke is going around right now that California is so heavily in debt it’s asking to be annexed to Nevada. Not so Utah.
I am grateful to our legislators who work tirelessly to keep us out of debt as a state. I applaud conservative thought, which suggests giving people a hand up, not a handout. It preserves the dignity of every individual.
However. Now the time has come to give our hardworking legislators a hand up to high moral and ethical ground. Three major problems: 1) There is no limit on the amount of campaign funds they can receive. 2) They can hand out their extra campaign funds to other legislators in order to buy influence with them. And get this: 3) Not only is your legislator essentially for sale to the highest bidder, it is legal for your legislator also to be a paid lobbyist at the very same time he/she is a legislator.
Does this sound right to you? Surely the terms “conflict of interest” must still have meaning in the way we govern ourselves. And yet this concept is ignored on Capitol Hill more and more every year. This means that little voices, voices of those who cannot afford paid lobbyists and huge contributions, often have no voice at all. Call me crazy, but I think it’s time we citizens gave these gentlemen and ladies a hand up toward ethical behavior.
Oh, they’ve made a weak little gesture about doing their own ethics reform and policing themselves, but my question is: How can you police yourself? They want us to believe they’ve got it handled. But the reforms they suggest totally avoid the three issues listed above. This is beneath their dignity as individuals and as advocates for all citizens of this state.
Someone very clever up there thought of a really ingenious way to keep us citizens out of the picture: They will propose a change in our fine state constitution to include their insubstantial ethics reform system forever, so that no citizens can ever question it again.
Bothersome sort, we citizens are. We shouldn’t be involved, they may be thinking. What else could be behind this latest move?
If you want to help them change in a meaningful way, with an independent commission to correct these abuses, go to utahethicsreform.org, get a petition, help collect the signatures needed to address and correct all three issues on November’s ballot.
Help these people up onto the high ground. In their true hearts they must really know how bad conflict of interest is when making public policy. If your legislator tells you he or she is against this, perhaps it is time to get yourself a new legislator.
Terrell Dougan , a writer and community volunteer, spent many years advocating for those with developmental disabilities and served for a time as community relations assistant to former Gov. Scott Matheson.
The Utah Legislature has made no secret of its disdain for citizen initiative campaigns. The state Constitution provides recourse to Utah citizens through such initiatives. However, the Legislature establishes the procedures governing such petitions. Our legislators have enthusiastically embraced this authority by passing extremely high hurdles with tight time frames for getting initiatives on the ballot.
For example, petitioners must gather signatures from 10 percent of the total number of citizens who voted in the last election for governor and also from 10 percent of the number of citizens who voted in each of 26 of the 29 state senate districts. Because of the latter requirement, opponents of an initiative can concentrate pressure in just four of Utah’s 29 senate districts to prevent an initiative from getting on the ballot, no matter how strong is public support in the other 25 districts.
In spite of such existing hurdles, when it came to the initiative proposed by Utahns for Ethical Government on legislative ethics, the Legislature shifted into high gear to prevent citizen voices from being heard. Not only has the Legislature almost finished passing a series of watered-down ethics rules in comparison to UEG’s initiative, but Sen. Howard Stephenson, R-Draper, has also proposed changing the rules governing the process in mid-stream to favor opponents of the initiative.
These proposed ethics bills and resolutions fall short of real reform and include, most disturbingly, effective perpetuation of self-regulation by the Legislature of unethical behavior by its members, all behind closed doors. In raising opposition to citizen-driven reform, the Legislature has also, in many minds, mischaracterized significant elements of the UEG’s petition.
Sen. Stephenson’s bill—SB275—which has now passed both houses by two-thirds majorities, will make it easier for signers of petitions to remove their names after the petitions have been forwarded to county clerks. Although generally troubling as a further attempt to restrict the exercise of citizens’ constitutional rights, the bill seems targeted to undermine the specific initiative at hand and not to the furtherance of more general, good governance policies.
There are two fundamental problems with SB275:
The first gives more time for signers to request removal of their names. This shift is clearly directed at providing opponents of the initiative increased opportunities to pressure or even intimidate signers into removing their names at a time when backers can no longer collect signatures.
The second establishes an effective date immediately upon the signing of the bill by the governor if the legislation passes by a two-thirds majority. Usually, legislation becomes effective 60 days after the end of a legislative session—providing further evidence that this legislation is directly aimed at defeating the current initiative.
The bottom line is that SB275 is patently unfair and directly supports opposition to UEG’s initiative by making it more difficult for the legal voters of Utah to express their opinions as constitutionally provided. Hopefully, Gov. Gary Herbert will decide not to sign it into law.
On Monday, House Majority Leader Kevin Garn, responding to a question about the need/purpose for a citizens’ ethics initiative, said, “So at the end of the day I don’t get it.”
Could there be a more resounding endorsement for putting this initiative on the ballot and letting the people of Utah weigh in on this important matter?
John W. Milliken is president of Salt Lake City-based Milcom, Inc.
There was a time when Utah voters didn’t worry about the ethical standards of elected officials. “The system” took care of itself. The state Legislature had a healthy balance of political viewpoints. Journalists were aggressive, well-trained and informed. Lobbyists operated on the margins; few were full time, well paid or influential. Politicians were often statesmen, not political ideologues. And voters were generally well-informed.
Those vital checks and balances don’t exist today. The Legislature is politically one-sided, few journalists wander the halls of the state Capitol, ever-present lobbyists seek influence by any and all means, statesmen and stateswomen are scarce, and the public prefers propaganda over information. No wonder elected officials are tempted to push the limits of ethical behavior.
Poll after poll shows voter concern over abuse of ethical standards. In response, a citizens committee called Utahns for Ethical Government developed a petition to help voters raise their voices about the issue. If you believe in good government, sign the petition. It’s the first step in the long democratic process necessary to identify reasonable ethical guidelines.
Actually, it’s probably the third, fourth or fifth step along the way. The first step was public unrest. Citizens complained about too much influence peddling, too much vote buying and too much favoritism. Lawmakers recognized the public unrest, but their response was more cynical than realistic. They pretended concern, but they didn’t want to give up power or perks. So-called “ethics bills” were largely cosmetic — designed to fool voters into believing the problem was solved.
After years of this charade, it became obvious the Legislature would not voluntarily respond to voter complaints. Concerned citizens formed Utahns for Ethical Government to move the process along. Members include representatives from business, education, government and other groups. Some are former legislators who remember a time when ethics were part of the Legislature’s culture.
Most of the men and women we elect are good individuals. That isn’t the issue. The Capitol culture has changed. It’s difficult to hold your freeway speed at 65 mph when everyone around you is going 70 or 75. At the Legislature these days, money, tickets, meals and other “benefits” fly by at 80 or 90 mph (figuratively). The gift-givers do what lobbyists are paid to do — influence legislation. It’s difficult to reject tempting gifts when no one knows either the boundaries or the consequences.
Creating ethical standards is a way to make it easier for the good men and women who represent us to resist temptation. Some object to that line of thinking, but it’s the basis for most laws, moral standards and social mores — the “contracts” that keep society functioning.
The petition does not impose ethical standards. It simply opens the subject for public discussion so voters can decide by majority vote in November whether they want to put a process in place. Voters will have a chance to vote “yes” or “no” on specific ethical standards, on the enforcement process, and on sanctions to be applied when standards are violated.
But the process cannot proceed unless citizens approve the concept by signing the petition.
In addition to the ethics petition, two others are circulating. One involves the redistricting process and the way voting district boundaries are determined. Redrawing boundary lines must be done after this year’s census. The last attempt was badly botched. This petition begins the process to correct that serious problem.
The third petition deals with campaign contributions and the disposition of leftover campaign funds. It wasn’t a problem when campaign costs were small, but in recent years the cost of conducting campaigns — even for minor offices — has skyrocketed. The petition is the first step in making sure campaign funding mechanisms are not abused.
You can sign none or all of these petitions. Each deserves support.
In addition, the Legislature may offer a constitutional amendment to create some sort of legislative committee to look at ethical standards. This is simply a cynical stalling tactic to negate the more practical citizen petition. Make no mistake about it, if the petition were not circulating, the Legislature would not act. And if — when the April deadline comes — the petition doesn’t have enough signatures, you can be sure the legislative effort will fade away … or be altered into meaninglessness.
Add your voice to the many voices asking for ethical behavior by elected officials. Sign the petition!
G. Donald Gale is president of Words, Words, Words. He is a long-time observer of the political scene. He was formerly editorial director at KSL. He earned a Ph.D. at the University of Utah and was awarded an honorary doctorate by Southern Utah University.
Faced with the real threat of several citizen initiatives concerning legislative ethics reform likely making it to a vote in November, it comes as no surprise that the top priority of the Utah Legislature is to pass its own set of bills regulating legislators’ ethical responsibilities.
Although budget deficits, taxes and health care issues are dominant, Republican House Speaker Dave Clark’s opening remarks zeroed in on the immediate need for ethics reform. It seems a series of ethics bills, which are preapproved by the House of Representatives, will be introduced this legislative session as something Clark said would “ensure that our actions on behalf of the public are above reproach.” But the Legislature just now announcing its plan to enact ethical legislation as a Constitutional Amendment sounds a bit unethical, especially since ethics reform has been an ongoing request of the citizens of Utah for years.
Requests that were previously easy to ignore are now imperative to a legislative body facing the unacceptable possibility of having to comply with laws created directly by the people. Unfortunately, this sudden enlightenment serves as proof for the theory that citizen initiatives act as a force to propel lawmakers to listen to their constituents.
Utahns for Ethical Government is a bipartisan group trying to gather 95,000 signatures by April 15 for an initiative calling for the creation of a legislative code of conduct and an independent ethics commission. Apparently, the Legislature now agrees there needs to be ethical reform, but it wants to decide what and how much is appropriate, and it wants to beat the citizen initiatives to the punch.
The Senate Joint Resolution 3 was finally posted Thursday for public view. The resolution calls for the establishment of an independent commission and defines the organization, structure, responsibilities and power of the commission. Although the bill meekly concedes the fact that an independent commission is necessary, it seems as though lawmakers are still not listening. Several legislators’ code-of-conduct requests made by the citizen initiative are missing or drastically different from S.J.R. 3.
UEG’s citizen initiative calls for a complete ban on gifts from lobbyists. This will act as a guarantee that our elected officials are listening equally to all sides of an issue, which they are paid to do.
The initiative also calls for a complete ban on legislators’ and candidates’ ability to appropriate campaign funds for their personal use. This means lawmakers must rely on their public paid income just like other public employees.
It also bans legislators from becoming paid lobbyists for at least two years after leaving office, limits campaign contributions to $2,500 per person or $5,000 per political action committee and bans the giving of campaign funds to other candidates.
The citizen initiative does have some questionable provisions. Mainly, the sponsors have set themselves up as the alternative vote for the commission member candidates if the legislation leadership does not unanimously agree.
Kim Burningham, chairman of UEG, said this provision should act as a promoter to compel the leaders to work together in choosing 20 individuals from which five would be drawn.
“We hope it will never be used,” Burningham said. “It’s intended to never be used. What if the leadership refuses to do it? Well then, we entered a backup procedure.”
But even with this unusual term, UEG’s initiative is packed with code-of-conduct requirements that are popular with Utah citizens. Burningham said UEG has a lot of questions, especially with the legislation’s new revelation of a constitutional amendment, which he said doesn’t seem to be justified. Rather, he said, it’s like the Legislature is doing it for the appearance of doing something great, but if what it is doing only implements a weak commission form, it’s all show without substance.
If the Legislature truly wants to assure the public of its stellar conduct, it needs to address all of our concerns. Instead, the legislators have predictably chosen to only address the issues that don’t hurt them where it counts: their pocketbook.
State Sen. Lyle Hillyard, R-Logan, has threatened to resign from office if the ethics initiative sponsored by Utahns for Ethical Government becomes law.
The initiative, according to Hillyard, allows three complainants to charge him with an ethics violation, and then to subpoena any confidential record they want from his attorney-client files. Concerns for the privacy of his clients and the business of his firm apparently have overthrown his desire for continued service as a public official.
Hillyard’s concerns have no basis in fact, however. The initiative does not abolish the attorney-client privilege or any other safeguard to confidentiality. Nor does it give unlimited subpoena power to those who bring an ethics charge against a particular legislator.
Subpoenas “may” be issued by the executive director of the ethics commission, at the request of complainants, but only as the director may deem “necessary” to the disciplinary process. This determination of “necessity” is made independently by the commission through its executive director, and not by the complainants themselves.
The initiative’s procedure in this regard incorporates by reference the current statute which governs legislative subpoenas, Chapter 14 of Title 36 of the Utah Code, as well as Rule 45 of the Utah Rules of Civil Procedure, a statute and rule which have been on the books for decades. Both the statute and the rule provide for judicial protection where subpoenas may be issued in violation of an evidentiary privilege or the right to privacy.
Why, then, does Hillyard continue to distort the facts of our initiative and pretend that a subpoena will disrupt his law practice and force him from office? If he seriously feared subpoenas in furtherance of legislative investigations, he should have (but has not) asked for the abolition of the statute and rule in question long before now.
But Hillyard (who, as a lawyer, undoubtedly has quashed not a few subpoenas in his time) does not seriously fear subpoenas. He fears, instead, that subpoenas will be used seriously by a citizens commission to investigate allegations of ethical impropriety. He prefers, therefore, to keep the subpoena power with his friends in the Senate, friends who, because of their shared interest in dodging scrutiny, will never issue a subpoena that might lead to meaningful disclosures.
Indeed, if there has ever been real accountability through an ethics investigation in the Senate (notwithstanding recent reports of misconduct which clearly warrant an inquiry), it escapes memory.
The real question is who shall decide what information, in the event of an ethics complaint, is discoverable, by subpoena or otherwise. Shall we continue to allow the senators and representatives to be judges in their own causes, telling us what they will or won’t reveal about their involvement in a controversy over ethics? Or shall we have an independent decision-maker who, after listening to the arguments of those who seek discovery and the legislators opposing it, serves as a disinterested arbiter of that dispute?
Far from revealing a problem with our initiative, Hillyard’s “subpoena issue” underscores the need for an independent ethics commission.
Hillyard can’t deny the utility of subpoenas as a tool for transparency, since they commonly are used for the gathering of information. By legislative edict, every other officer and employee of state government is subject to investigation when accused of malfeasance in office. But these public officials aren’t making headlines by threatening to quit because of the contingency of a subpoena. Moreover, the Legislature has passed laws which require disclosures from ordinary citizens in numerous contexts. Hillyard and his colleagues, however, apparently believe that this type of law — which they have made for others — shouldn’t apply to legislators themselves.
This attitude — that legislators somehow are “special” and that their private needs should take precedence over the public interest — must be smashed. Legislators are elected to serve, and personal interests, accordingly, must bend to the common good as our first priority.
If they don’t keep these priorities straight, if they are not endowed with that spirit of selfless service which traditionally has filled those who view public office as a sacred trust, then by all means they should resign. Our state does not want for men and women of principle who will stand in their place.
Alan L. Smith is an attorney and a member of the executive committee of Utahns for Ethical Government.
As volunteers go door-to-door asking neighbors to sign the ethics initiative petition, the response is overwhelmingly positive. Most are eager to see ethical improvement in our Legislature.
On the other hand, some currently-serving legislators and entrenched politicians are opposed. Recently, the Clipper published a column by Todd Weiler which illustrates faulty arguments used to discourage passage of the ethics initiative.
Some politicians, including Weiler, say recently passed legislation on ethics reform is “sweeping.” Hardly! The Salt Lake Tribune called it “baby steps.” The Ogden Standard Examiner described the legislators as “experts at excusing bad ethics” and graded them with a “D.” The Deseret News called legislative actions “modest steps” and promises of ethics reform “unfulfilled.”
For whatever good they did, I applaud our Legislature. But the “baby steps” are insufficient.
For instance, as Weiler says the legislators did pass SB 162; some claim it will limit legislators using campaign funds for personal use (an unfortunately frequently occurring practice). The complete picture, however, is SB 162 does nothing about current legislators and impacts only legislators who are no longer in office. Sitting legislators can continue to spend their campaign funds precisely as they desire.
In another case, many were delighted the Legislature passed HB 345. The public was led to believe legislators could no longer walk out the door and start lobbying. Within weeks after the session, we discovered the loophole: it does not apply to former legislators lobbying for any business not primarily engaged in lobbying. In other words, they can lobby for special interests as long as they don’t join a lobbying firm. The public again had been hoodwinked.
Entrenched politicians may have passed a few bills, but it was primarily cosmetic. We need genuine ethics reform.
Like Weiler, politicians point to an Ethics Committee established by the Legislature and say they have met all year and have made suggestions. Note this committee recently ended their 2009 service with only one recommendation: an ethics commission. Sound good? Perhaps, until we learn this commission can only act by a 4-1 vote. (What happened to majority rule?) Or that the Commission meets in secret? Or that no regular citizens are to be members of the commission? Or most importantly, their recommendation did not address campaign fund use, lobbying restrictions, conflict of interest disclosure, etc. More baby steps.
Weiler claims our proposed ethics initiative commission treats a legislator guilty until proven innocent. Not true. The proposed commission does not determine guilt; it only makes recommendations to the Legislature which must deal with them openly. The commission is not a judicial body.
Weiler complains that the proposed commission would allow three citizens to bring a complaint. And what is the harm? One person can already bring a complaint against any city or county official. One person can bring a complaint against members of the judiciary. One citizen can bring a complaint against you! What is so special about the Legislature only allowing sitting legislators to bring complaints (the current practice)?
Entrenched politicians are using specious and invalid arguments to stop the ethics initiative — arguments like the above that are superficial.
Amazingly, Weiler claims our ethics initiative “removes responsibility for ethics from the people.” Exactly the opposite is true. Currently, only the Legislature itself can bring a charge against its peers; this seldom happens. Legislators are understandably reticent to criticize peers whose vote they will later need.
In the proposed ethics initiative an independent citizens commission will add an impartial eye to the process and bring greater objectivity and ethical conduct to the Legislature.
Some entrenched politicians read the initiative and are nervous. I wonder why?
The Daily Herald stands alone among major Utah media in its editorial opposition to the ethics reform initiative now in circulation for signatures. The paper’s latest salvo attacks the initiative for being unfair to legislators. Fairness, we agree, is a fundamental American value. But the editorial is wrong to claim that the initiative is unfair to anyone.
Three parties are affected in any complaint about legislative ethics: the accused legislator, the complainant, and the public at large. The Herald is wrong about unfairness to legislators and completely ignored the matter of fairness to anyone else. Let’s look at an infamous example — from Utah County: the legislators who got a college administrator to use state resources to build a Republican Party parade float. Only legislators can file an ethics complaint. No legislator officially even questioned the propriety of this unethical scam. Where’s any fairness to the public in that?
The ethics initiative would give any three citizens the opportunity to file such a complaint, but unless they have personal knowledge of what actually transpired or who was involved, any complaint is likely to be factually incomplete. That’s why, in fairness, complainants are given the opportunity to flesh out additional facts in the initial investigation period. They have the burden of carrying the complaint forward and must establish that all of the component elements of an ethics violation occurred. The evidence must be sufficient to be persuasive and believable.
That is a heavy burden for the complainants to bear. It cannot rest on rumor and hearsay. As the ethics hearings last year demonstrated, there are many disincentives for witnesses to step forward and spill the beans — the biggest being the fear of legislative retribution. Subpoenas are the only means of getting unwilling witnesses to testify, and can only be enforced by a district court. If a subpoena is inappropriate in its subject-matter or scope, the court will quash it. This is nothing new. It is the same subpoena authority that the legislative ethics committees already possess.
The initiative’s complaint process has two stages, one preliminary and one formal. The preliminary stage is solely investigative, informal, and involves no hearings. The initiative reads: “In furtherance of the investigation contemplated under this section … the executive director may issue subpoenas for the production of documents and to compel the attendance and testimony of witnesses by deposition or otherwise.” No language precludes subpoenas being issued at the request of either side; the executive director is neutral. The accused legislator “may participate informally, but shall have no formal rights of participation during this stage of the proceeding.”
This is the phrase that prompted the editorial’s claim that, maybe, “the accused is allowed to stand in the hallway outside the meeting room and yell through the door.” This is nonsense.
This newspaper was not present for last year’s ethics hearings where the complainants were neither allowed to be in the room nor yell through the door. Only the accused legislator and his lawyer were at the table with the committee. Since no one else was allowed to observe, the press was dependent on that non-neutral lawyer for briefing on each witness’s testimony. The initiative is drafted to correct that fairness deficiency. In the event the complaint moves to the formal stage where hearings are required, both sides have full rights of formal participation, including cross-examination of witnesses by attorneys for the parties. This is hardly the stuff of a Star Chamber, as this newspaper erroneously characterized the process.
• David R. Irvine is a Salt Lake City lawyer, a former Republican legislator and a drafter of the initiative.
Judging from quotations attributed to them in a recent Bob Bernick column, Sen. Howard Stephenson (R-Draper) and Rep. Kevin Garn (R-Layton) do not like the ethics reform initiative we drafted. Nobody likes an “outsider” (if Utah voters can be called outsiders to the people’s business) to come in and clean house for them. But after years of missed opportunities by the Legislature, it’s up to the voters to enact ethics reforms that really mean something.
These two legislators appear mainly to be worried about two things: First, that the ethics initiative will keep legislators from getting jobs they want, and second, that it offends “due process” and will result in complaints that will ruin legislative reputations. We respectfully disagree. Legislators who would turn the chambers of the House or Senate into a “job fair” are putting the integrity of the lawmaking process at great risk. But for their status as legislators would they be getting the job offer in question? Is the job being offered to ensure voting support for an employer’s interests?
“Due process” means adequate notice and a fair hearing before an impartial tribunal. The initiative more than satisfies these standards. In particular circumstances, legislators could obtain a “safe harbor” opinion that immunizes them from charges of misconduct.
While state officials in the executive branch, county and municipal employees and judges may be charged with ethical improprieties by a single complainant, the initiative takes three to file a complaint against a legislator and those three will have to bear the burden of financing their own case. Complaints are screened confidentially by an independent commission so that frivolous filings can be dismissed before they become known to the general public. If the charges are substantial, the legislator is entitled to a hearing before an impartial tribunal, with full rights of participation and legal counsel of his or her choosing at public expense.
If the complainants offer enough evidence of misconduct to be believable unless rebutted, then (and only then) the legislator must show that his conduct did not violate any ethical rule. This allocation of the burden of proof is appropriate because ethics hearings are not criminal proceedings; they are similar to the treatment of corporate officers and directors under existing law. A business partner or corporate director may argue that his conflicts and self-dealing have not injured his company or shareholders, but how is this argument to be disproved? In these instances, most, if not all, of the evidence resides with the fiduciary, and hence it is currently required that he disprove the harm. Many candidates for office argue that government should be run more like a business. We believe there is truth to that, and therefore we apply to legislators the same standards of proof by which the ethical conduct of business fiduciaries has been judged from time immemorial.
Under current rules, only legislators may file ethics complaints. Because there are enormous incentives against legislators challenging the conduct of their colleagues, and because the existing process virtually guarantees that peer review of such complaints will go nowhere, legislators who want to get chalk on their shoes from pushing the boundary lines have every reason to try.
The number of ethics investigations in 30 years can be counted on one hand. Unless a legislator admits misconduct, nothing happens. The most blatant abuses of office go unchallenged, such as: A legislator pressures the governor to fire the director of a state agency investigating fraud claims against the legislator’s friend; another legislator pressures university officials to build a political party’s parade float with public funds; another legislator pressures a judge who has decided a case against the legislator’s friend; or a legislator pressures a staff fiscal analyst to give a competing financial analysis on a public referendum issue to suit that legislator’s personal viewpoint.
Finally, it is suggested that this initiative will encourage current legislators to leave office and discourage good people from running. If current legislators are not willing to serve with an eye single to the interest of the people, we are confident that there are many good citizens willing to selflessly serve in their place. Most people who seek public office do so because they want to make a constructive difference in what goes on. Gresham’s Law in economics holds that bad money drives out good money. There is a similar principle in politics, and the ethics reform initiative is carefully designed to keep honest people honest at our state Capitol.
Kim R. Burningham, chairman, Utahns for Ethical Government
Utahns are preparing two initiatives for the 2010 ballot. Both can improve freedom and democracy in our state, but in order to pass, they will require a lot of signatures and then votes.
Before explaining these two projects, we should note that the term “democracy” is used lately with considerable looseness. Even the most shameless dictators now claim that their countries are democracies. Russia’s Putin, Venezuela’s Chavez and Iran’s Ahmadinejad come to mind. They were once elected democratically but then gradually reduced their opponents’ freedoms to the point that the term “democracy” is now questionable at best.
Ethical behavior is absolutely crucial to democracy, and unfairness towards opponents can destroy it. How? Quiet changes in election practices, minor conflicts of interest, some financial advantage in campaigns and secret use of political muscle on opponents. Little by little, the freedom to choose leaders is crushed.
None of our Utah legislators are in the same league as Putin, Chavez or Ahmadinejad, but some of those strong-men’s tactics seem distressingly familiar.
Quiet changes in election practices? The Wall Street Journal called our legislators’ 1991 gerrymandering of Utah election districts one of the worst and most blatant power grabs by one political party in history.
Conflicts of interest? At least one current, influential senator is a registered lobbyist for one of Utah’s most powerful interest groups.
Financial advantage in campaigns? Over 81 percent of campaign finance for Utah legislators comes from corporations and special interests — not voters — and objective observers regularly give Utah failing grades for its loose campaign finance laws.
Use of political muscle on opponents? Think about the Senate Judiciary chairman’s threatening letter to the judge who dared to rule against his developer friend in Mapleton. Perhaps most telling was the Utah County legislators’ demand that a prominent candidate for president of Utah Valley University have his wife apologize for having campaigned last year for ethics reform.
Anytime our politicians use unethical means, they are chipping away at freedom and democracy, at government of the people, by the people and for the people.
So how are the two citizen groups proposing to repair Utah’s damaged democracy with ballot initiatives for 2010?
“Fair Boundaries” proposes an independent commission for redrawing election districts every decade (http://www.fairboundaries.org).
“Utahns for Ethical Government” (http://www.utahethics.org) proposes clear standards on legislative ethics and an independent commission to hear complaints involving them. Both commissions will be limited by the Utah Constitution to an advisory role but will have powerful influence on public opinion and thus on the Legislature.
Voters and legislators should study both petitions carefully. Ideally, our legislators should themselves pass the proposed initiative bills or stronger ones during the next session.
If they do not or instead pass weaker legislation in an attempt to defeat these petitions, Utahns will have the chance to repair our democracy by signing these petitions and then voting for them in November 2010.
We clearly understand that ethics are crucial in interpersonal relations, so it’s high time that we demand high standards of ethical behavior in Utah politics. Our freedom ultimately depends on it.
• Don Jarvis, of Provo, is a retired BYU administrator and professor of Russian. Craig Dennis, also of Provo, is former publisher of the Daily Herald and is now a certified business coach and business broker.