Statement on Proposed Ethics Reform Legislation
January 11, 2007
And we are very encouraged by the sense of urgency and commitment to act on the agreement in principle demonstrated by the willingness to convene a special legislative session to enact a reform plan into law.
We received a copy of the bill yesterday and have been carefully reviewing its many provisions. As the saying goes, the devil is in the details. As we have been going over the proposed bill’s fine print, several things have become apparent to us. As it is currently written, the bill:
- Does a good job of creating a new politically independent enforcement agency under the direction of a nonpartisan board.
- Gives the new agency the authority to independently investigate possible wrongdoing and, most importantly, gives the new Government Accountability Board the financial means to conduct investigations without going hat in hand to state lawmakers to secure the needed funds.
However, there are other elements of the bill that need fixing. These include:
As it is written, the bill also strays from its purpose of remedying what’s wrong with the current Elections Board and Ethics Board. It unnecessarily and unacceptably diminishes other aspects of existing ethics enforcement capacity in the state as it seeks to fix what was wrong with the two enforcement agencies being replaced. Specifically, it goes too far in limiting the ability of the state Justice Department, the attorney general and local district attorneys to do their jobs. An unmet goal of this ethics reform legislation should be to do no harm to other existing ethics enforcement tools as it seeks to repair the Elections Board and Ethics Board.
- Prosecution authority. While the bill equips the Government Accountability Board with reasonably strong investigatory powers, the new board is more shackled when it comes to prosecution. The bill as it is written creates an overly cumbersome process that must be followed and is overly restrictive with respect to how prosecution of both civil and criminal cases must be handled. The Government Accountability Board needs to be given more elbow room to maneuver and must ultimately have the authority to make sure both civil and criminal prosecutions are seen through to their conclusion.
Particularly egregious are unprecedented new restrictions on leaked information, including a possible 9-month prison sentence and $10,000 fine for violating the restrictions. Government employees with knowledge of botched investigations or cover-ups or other official misdeeds should be encouraged to act on their duty to alert the public. This bill as it is written would punish them for doing so.
- Public access to records and other public information. Public knowledge of what is going on in government is an incredibly important component of ethics enforcement. Public awareness – or even the possibility of public awareness – of ethical problems is a valuable deterrent to wrongdoing. As it is written, the ethics reform bill introduced today is actually somewhat more restrictive than current law in terms of public access to records and other public information. By rights, good ethics reform should recognize the importance of public knowledge in the enforcement of an effective code of government ethics and should include measures to increase public access. But at a bare minimum, the bill should ensure at least as much access as the public and media currently enjoy. This bill currently does not pass that test.
- Nonseverability. The bill contains an unconventional mechanism known as a nonseverability clause that would wipe out the entire new law if any portion of it were challenged in court and ultimately ruled unconstitutional. In fact, the provision appears to not only invalidate all the newly created enforcement structure and capacity, but also prevent the restoration of the pre-existing agency structure and laws replaced by the new law. This is the first time we have ever seen such an extreme nonseverability provision attached to a piece of legislation in Wisconsin. It is unnecessary and in fact is dangerously irresponsible. No good public purpose is served by this approach, and the clause should be removed.
All of the problems we have identified with the draft legislation are easily fixable, and there is ample time to make needed repairs to the bill before its passage and presentation to the governor for his signature. As long as legislative leaders and the governor are open to changes that make the new enforcement structure more workable and effective, there is no reason why major ethics enforcement cannot become reality in the next few weeks.