Disclaimer: I am a private individual and do not run a campaign, political action committee and am not a registered lobbyist etc. I would also suggest checking out the unethicalreform’s commentary page which includes the bill and commentary thereon (Connor Boyack has also chimed in).
I will strongly oppose the so-called Ethics Reform Referendum. By placing almost unlimited, unconstitutional, power in the hands of an unelected elite, it is the exact opposite of its title.
I have read the pdf of the 21 page proposed legislation by Utahn’s for Ethics in Government.
Utahns for Ethical Government’s bill begins with an intent statement with unsourced facts and figures (as far as I’m concerned, they are made up) and appears to focus on the private individuals and the private sector.
Definitions: Great cause for concern
The first red flag comes in the definition of “includes”. “Includes” is defined in the bill as “non-limiting or without limitation”. That means each time “include”, or a variant thereof, is mentioned in the bill’s text, that particular measure can be expanded to whatever the anointed ethics commission wants. “Include” or a variant thereof appears fifty-three (53) times in the document (about 2½ times per page).
The definitions of Client, Code of conduct, Confidential information, Control person, Corporation, Gift, Insider, Legislative candidate, Lobbyist, Personal interest, Public official, and Relative all contain “includes” or “including”. That mean those in power may expand or interpret the definitions to whatever they wish to include whomever they wish. This is particularly important based on the draconian restrictions placed on many of the above groups or people.
Two protected groups are created in the definitions:
Licensed attorneys and licensed accountants are excluded from the “lobbyist” definition as applies to commission members but not to legislators. (Note: legislators and accountants who are legislators have to disclose their client lists don’t they). This has significant impact as they are excluded from many of the bills restrictions as long as they can pass off what they’re are doing as “giving testimony”. Since testimony is undefined, they are given carte-blanche from the law.
Those benefiting from state contracts and monies and employed by a public body while lobbying for money for their public body are exempted from the “personal interest” definition. Translation: if you are any type of government employee or public union member and pushing the legislature for more funding of your employing organization (such as through higher taxes), you are exempt from the definition and it’s associated restrictions. Private individuals and businesses are not exempt. Period.
On the other hand, a citizen lobbyist (you) can be brought into the definitions of “lobbyist” and/or “personal interest” (both definitions contain “includes”) and have serious restrictions placed on your ability to persuade your elected representatives or state agencies (see “public body”) and their associated boards (unless you are lobbying them for more tax money for themselves or another public body).
Check and Balances on the Commission
There are none. The bill states: “No member of the commission may be removed from office by the legislature”, “[the commission] is not an agency within the executive branch of state government”, the “Attorney General…shall have no power or role as counsel for the commission”, and “…there shall be no judicial review or agency review of any commission action”. The bill has excluded every single branch of government from providing any oversight whatsoever. Nevertheless, the bill has plenty of provisions for conducting investigations and (kangaroo) hearings of legislators but, glaringly, contains absolutely zero provisions for addressing commission misconduct or ethical charges. Thus, they are absolved from any ethical indiscretions they themselves commit.
Additionally, if the bill is challenged on constitutional grounds, it asserts: “the sponsors [five self-anointed people] or any of them shall have an absolute, unconditional right to intervene in any such litigation”.
It would be wise to say: do not tick off any member of the commission (maybe they should be called commissars?). With the absolute powers granted to them they can do whatever they want to you to restrict your rights of political participation.
Five individuals can be appointed by the Legislature’s leadership with name drawn from a hat (we get them by lottery, more than merit). However, the bill allows the five sponsors of the referendum to choose who can be considered for the commission. This immediately opens the door for sponsors to pick themselves and their closest allies (cronyism). In either case, the commission is, essentially, unelected. Once appointed, the commission has absolutely no checks and balances or oversight and will not answer to the electorate in any way. The commission will also have near unlimited power.
Those who have been lobbyists in the last five years are ineligible to be on the commission, BUT, remember, licensed attorneys and accountants are excluded from that definition and can be on the commission.
If you were an officer in a political party in the last 5 years, you are ineligible to be on the commission. However, the five sponsors are, evidently, excluded from this provision. In all likelihood, this provision will exclude plenty of people from consideration. That, unsurprisingly, leaves the door wide open for the “sponsors” to waltz into the spots.
The commission (likely, the sponsors) has unlimited powers to “investigate and review the conduct of legislators” with little or no constraints and no defined limits on what constitutes evidence. Hearsay is admissible. The commission may also apply a “code of conduct” which it sets and can change or redefine as it sees fit (again with no checks or balances). However, the commission can never weaken the code of conduct it sets. That, too, is problematic as it would prevent the commission for altering the code if it is overly restrictive.
The commission’s executive director must be a licensed attorney. There is no prohibition on him/her having been a lobbyist in the last five years. Yet another protected position with the commission for lawyers. Additionally, there is nothing precluding a commission member from being the executive director. I wonder if a lawyer writing this bill wasn’t gunning for the position when this was inserted…
The commission is allowed to hire as much “additional staff” as it pleases and demand that the legislature fund it with what it deems as “appropriate” so that it is “not…abridged, impaired, or threatened by the legislature, any committee of the legislature, or any legislator.” Further, the bill mandates the legislature to “adequately” fund salaries and operations of the commission and includes a requirement that minimum funding of $472,000 be provided. We are left to assume that the commission will decide what “adequately” means. Again, the commission has no oversight as to who (like their family or political associates) they hire, how many they hire, and how much they spend. The unelected commission will dictate to the legislature how much to give it.
The commission can completely take over the use of the Office of Legislative Research and General Counsel, the Office of Legislative Fiscal Analyst, and the Office of Legislative Auditor, regardless of cost. Hence they can also use these offices to require the legislature to fund the commission’s whims – the offices are necessary and will require additional staff as workload increases. This also opens the possibility for the commission to pressure that certain favored individuals are assigned to new positions in the aforementioned offices.
The commission can issue subpoenas to compel document disclosure and attendance and testimony.
If a legislator asks the commission for a ruling on a proposed activity, it does not have to issue an opinion (“…in its discretion, may issue…”), leaving the legislator hanging. It seems like this would allow the commission to ‘set up’ legislators it dislikes: refuse to issue an opinion then slap the legislator with an ethics investigation/violation if/when the legislator carries out the activity while responding quickly to legislators that it does like.
Disenfranchising Private Individuals
In 2013, you can not be a “control person” in a corporation and be a legislator. There are a couple of clauses including that”…being a control person in such corporation further any personal interest…”. Remember, the definition of “personal interest” is open to whatever the commission wants (contains “includes”). Also, it looks like the owners of any LLC would also be covered meaning that many small business owners will be excluded from becoming a legislator.
While “corporation” includes labor unions, government-affiliated entities are not included. That means every government employee (state, local, schools, etc) would have no problem qualifying as a legislator. Everyone else is locked out.
That means everyone who consumes tax money and is a drain on productivity will be allowed to hold political office while the State’s income producers would be precluded from serving in he legislature. Paging Ayn Rand and Atlas Shrugged…
Legislators are prohibited from giving “consultations” on the passage of legislation if there is an exchange of “money or money’s worth”. Neither “consultations” nor “money’s worth” are defined leaving that fully to the whims of the commission. Thus they could say a legislator was in violation if they tell you they are concerned (consultation) that bad legislation may pass and you lobby, or otherwise fight against the legislation (money’s worth). It would be even worse if you had made a campaign donation to that legislator.
The bill prevents legislators from threatening to use their office in “furtherance of any personal interest.” Sounds good? Keep in mind government entities are excluded. That means they can use their office and make threats if it will benefit tax consuming entities (including schools). It also means that if any government agency behaves unethically or oversteps its bounds etc, legislators would not be allowed to take either legislative or fiscal action, even if citizens demand such. The commission would have veto power of such actions.
Legislators may not use government facilities or employees to further a “personal interest”. Yet again, however, legislators have the all clear to use those tax-funded facilities and employees to assist government entities getting what they want.
Legislators can not interfere or attempt to influence documents, analyses, opinions etc of the various government, governor, or legislative fiscal offices and government officials in a proposed statewide initiative. That also appears to prohibit the legislator from questioning the analyses and opinions by those entities. This effectively guts the legislative oversight function and means that writing an op-ed could be construed as “influence” (again, something to be determined by the commission). It also means that an interest group could propose a statewide initiative and effectively gag legislators.
Legislators can not “unduly” influence matters decided by a public body (school boards, city councils, government at all levels) or public officials (board members, agency directors…). This too, is left up to the commission to decide what “unduly” means and would, certainly, incentives legislators to shut up on governmental actions even when acting as a private citizen (let alone their constituent’s representative). The one exception (via the “personal interest” definition) is if the legislator is acting to benefit tax consuming entities (government).
Legislators are required to file a conflict of interest disclosure statement with the commission. Yet again the word “include” appears here meaning the commission can ask for whatever they want from the legislator and are not limited at all by the requirements in the provision. They can also demand legislators provide them any other additional information “in [the commission’s] discretion” within 14 days of the demand. How many candidates will be willing to open themselves up to this?
Campaigning and Funding
If you become a candidate you can not solicit or accept any other political party, political action or political issues group except for your own campaign committee. The commission gets to decide what “solicit” means. If you are a Democrat etc. you can’t solicit accept donations for your own party. That is absurd. Further, you should be allowed to participate in or promote other personal political interests. Your freedom to exercised political free speech should not be restricted, especially, when acting as a candidate!
Yet more protection for government as well as big corporations and unions (such as the powerful teacher’s union): candidates can accept money from political groups formed from corporations (including unions). That severely disenfranchises private individuals. They can no longer donate money to like-minded groups to pass along to candidates that adhere to their values. This provision will heavily tilt financial political power in favor of large corporations and unions and rip it out of the hands of the individual.
Using funds from personal campaign coffers for personal reasons is prohibited. Sounds fine, except “including” is in the provision. As such, what “personal expenditures” include is entirely left to the commission’s caprices.
If any money is left in the candidate’s fund five years after the election, it must be given the school fund (a government program) or specifically designated for a charity (approved by the commission!). Why only to education? Why not to Medicaid, the Corrections Department, the Highway Patrol, etc. or how about requiring that it be returned on a prorated basis to the donors? If not designated, I assume the money is automatically given to the school fund. That is money donated to the individual not to the commission. An unelected commission has no right whatsoever to dictate what will happen to your donated money. That is solely between you and the recipient.
Finally, the bill contains campaign contribution limits for individuals. I should be able to give what I want as long as full disclosure is required. This is an unconstitutional limitation of free speech.
Guilty Until Proven Innocent
Anyone accusing a legislator of an ethics violation only needs to provide “prima facie” (first appearance) evidence and “the burden of proof…in relation to such case shall shift to the legislator and such legislator must show by a preponderance of evidence that the legislator did not commit the violation…” You are guilty – now prove your innocence or face a felony without the required “beyond a reasonable doubt” burden of proof of fair judicial cases.
Violation of the commission’s “code of conduct” can be considered a felony as determined by the commission. The standard for violation can be that a legislator “suggest” something to “further the personal interest” to a lobbyist. That standard relies on hearsay and interpreting thought (the thought police). Any violation of the above provisions, which the commission can interpret however and whenever it wants, can result in a felony. A felony strips you of voting rights, firearm possession, among other rights and benefits. It gets better.
Any three “persons may file a complaint” alleging an ethics violation. These same people can compel the executive director to issue subpoenas for documents and individuals. They can also “leak” their complaint to the press without any penalties being applied to them thereby smearing a person before the Commission has even considered the complaint or they can “leak” their complaint once the Commission finds no cause for action. While the complainants have full participation rights, the accused has no formal participation rights during the investigation. There is no penalty for frivolous complaints. Again, all this is done with no checks and balances.
After 60 days the executive director (we’re down to one unelected power broker now) will recommend if the complaint is dismissed or not. However, the commission can extend the deadline. If recommended, the formal complaint process begins and the legislator is guilty and must prove their innocence.
During the formal complaint process the commission can extend deadlines as it sees fit (there is no definition for “good cause” and no elected or judicial body to review those determinations).
The commission determines what other parties are allowed to “intervene” and if granted, limit participation in the hearing(s). It gets to pick and choose who else will provide information for defense or accusation. This means, if it desires, it can pick winners and losers with no oversight or means of appeal.
Thereafter, the commission makes it’s recommendation (including that of felony).
Again, all this without the accepted “beyond a reasonable doubt” standard. You’re name and reputation will be dragged through the mud and totally sullied on what may amount to the commission’s capricious recommendation that you should be a felon. And you nor anyone else, even the courts, have no recourse whatsoever. It is disgraceful.
Under such a system no on would want to be a legislator unless some sort of deal was struck with commission members or they blessed you as a worthy candidate which they would not attack. It would be our very own politburo.
Besides the unlimited budget requests (besides the initial $472,000) the commission can demand, accused legislators must use outside counsel for the formal hearing and taxpayers pick up the tab. It’s a trial lawyer’s dream.
Bottom line: The bill clearly favors tax consuming individuals and entities while discriminating against wealth producing individuals. This will guarantee bigger government, higher taxes and a further erosion of our freedoms. Ultimately, the bill is unconstitutional and an anathema to free and open political speech which creates a localized political oligarchy.