What’s behind the dismal grades? Across the board, state ethics, open records and disclosure laws lack one key feature: teeth.
“It’s a terrible problem,” said Tim Potts, executive director of the nonprofit advocacy group Democracy Rising PA, which works to inspire citizen trust in government. “A good law isn’t worth anything if it’s not enforced.”
Some of the results of the State Integrity Investigation seem more than a little counterintuitive. New Jersey emerges at the top of the pack, a seemingly stunning ranking for a state with a reputation for dirty politics. And there are other surprises: Illinois, hardly a beacon of clean governmental in recent years, comes in at a respectable number 10. Louisiana ranks 15th.
Many of the states at the bottom of the rankings, meanwhile, are sparsely-populated Western or Plains states like Idaho (40th), Wyoming (48th) and the Dakotas (North Dakota is number 43 and South Dakota comes in at 49). There, libertarianism roots, a small-town, neighborly approach to government and the honest belief that “everybody knows everybody” has overridden any perceived need for strong protections in law.
Peggy Kerns, director of the Center for Ethics in Government at the National Conference of State Legislatures, noted that ethics laws are shaped by the environment and culture of the state. “In smaller states, the culture is different,” she said. “It is harder to disobey the law and go against your own moral core if everyone knows you.”
And statehouses with a history of political corruption and scandal — like New Jersey, Illinois, and Louisiana — have been more likely in recent years to successfully implement reform.
“Legislators will react to a corruption scandal, and work to get political cover by enacting reform,” said Karen Hobert Flynn, vice president for state operations at the nonprofit advocacy group Common Cause.
That’s apparently the case in New Jersey, where a series of scandals helped bring about some of the strongest ethics laws in the country. According to the State Integrity Investigation, New Jersey’s strong points are clear: extensive financial disclosure requirements for the governor, a transparently-run pension fund, and an aggressive ethics enforcement agency. The state also boasts some of the nation’s toughest anti-pay-to-play laws for contractors.
Louisiana Governor Bobby Jindal, in an attempt to shed the state of its scandalous political history, enacted sweeping ethics reform legislation as one of his first acts in office back in 2008. Among the new laws: financial disclosure requirements for nearly every public official and caps on how much lobbyists can spend on meals and drinks.
States have taken the initiative on other fronts as well. Connecticut implemented a public financing system for elections. Alabama granted subpoena power to its state ethics commission. South Dakota unveiled an online database for campaign finance records. Florida bans all gifts from lobbyists to lawmakers. Citizens in Washington have easy online access to government records and data, including the final map on the state’s Redistricting Commission website (which also lists past meeting minutes, draft plans, and public commentary).
But advocates note that substantial reform efforts are more often the exception rather than the rule. And typically, even new laws often fall short of their goals. Hobert Flynn said she is often “disappointed by how far-reaching the reforms are, how the reforms are implemented, and how they are enforced.”
Measuring the states: The Integrity Index
There are many ways to gauge government integrity. By one recent measure, Chicago ranks as the most corrupt city in the nation. New York places first as the most corrupt state.
Those are the findings of a February report released by the University of Illinois’ Institute of Government and Public Affairs, based on public corruption conviction data from the Department of Justice. New York had a grand total of 2,522 federal public corruption convictions from 1976 to 2010, followed closely by California (2,345 convictions) and Illinois (1,828).
But some argue that using convictions as an indicator of which states are “most corrupt” is misleading. A hefty number of prosecutions may actually suggest the system is working — corrupt behavior is rooted out and perpetrators are punished. States with relatively low numbers of convictions are not necessarily more accountable, but perhaps less equipped to sniff out malfeasance and go after the bad guys. So the State Integrity Investigation takes a different approach by measuring the risks of corruption, as reflected in the strength or weakness of laws, policies, and procedures designed to assure transparency and accountability in state government.
Using a combination of on-the-ground investigative reporting and original data collection and analysis, the State Integrity Index researched 330 “Integrity Indicators” across 14 categories of state government: public access to information, political financing, executive accountability, legislative accountability, judicial accountability, state budget processes, civil service management, procurement, internal auditing, lobbying disclosure, pension fund management, ethics enforcement, insurance commissions, and redistricting.
Indicators assess what laws, if any, are on the books (“in law” indicator) and whether the laws are effective in practice (“in practice” indicators). In many states, the disconnect between scores on a state’s law and scores in practice suggest a serious “enforcement gap.”
In other words, the laws are there, just not always followed.
‘Hiding in plain sight’
There have been nods toward transparency almost everywhere. In this era of online, immediately accessible information, some government records are easier to retrieve than ever. Bill language is posted on websites. Top officials disclose personal financial interests. State candidates reveal donors. States devote entire websites to budget expenditures, allowing taxpayers to track government spending
There remain a few holdouts. Idaho, Vermont, and Michigan still have no financial disclosure requirements for lawmakers and executive branch officials. Maryland is the only state in the country that requires an in-person visit to the state capitol to request and view financial disclosure information.
Ed Bender, executive director of the National Institute on Money in State Politics, said that governments may seem transparent by making information available, but it is not always presented in a useable or digestible format. He said trying to compare data within a state — say, linking campaign donations to state contracts — can be nearly impossible, and is a huge barrier to transparency.
“It’s disingenuous, hiding in plain sight,” Bender said. “Governments say, ‘here it is,’ but they don’t tell the story.”
Maryland unveiled a series of data-centric government performance measurement and spending websites — like StateStat to track spending of stimulus funds — which Governor Martin O’Malley hailed as the “foundation for restoring accountability and for driving our progress.” But the state’s poor ranking on public access to information — it came in 46th — would suggest otherwise.
“They’re selective on what they share, how they share it, and who they share it with,” said Greg Smith of the nonprofit group Community Research, who said poring through the state’s spending databases can be a headache.
“You can only look at it particle by particle, atom by atom,” he said. When he requests entire databases from state agencies, they refuse, citing a lack of technological expertise to properly export the data.
In every state, citizens have the basic right to access government records. But nearly every law is riddled with holes. Vermont’s Public Records Act boasts more than 260 exemptions, one of which almost always seems to apply to a request for information. Virginia’s law excludes the State Corporation Commission, a regulatory agency that oversees all businesses, utilities, financial institutions, and railroads in the state. Louisiana includes an exemption for records that are part of the “deliberative process” in the governor’s office, which could mean anything from budget negotiations to communications between the governor and his staff. Wyoming lawmakers excluded themselves from the state’s open records policy to prevent citizens from having access to the early bill-writing process. In effect, draft legislation and all related documents are withheld from the public.
In Massachusetts, the barriers to access are especially daunting. Not only are the legislature, governor, and courts exempt from public records law, but legislative votes are not even recorded in committee.
Lax enforcement, zero oversight
Across the board, enforcement is weak. States rarely check the accuracy of campaign finance records or asset disclosures unless prompted by a complaint. Penalties are insignificant or never issued. Violators of the law suffer little more than a slap on the wrist.
Arizona legislators admitted to violating the state’s financial disclosure policy when they failed to report trips paid for by the Fiesta Bowl. Neither the Senate nor House Ethics committee followed with an investigation.
New York’s Board of Elections oversees campaign finance, but can only fine violators $500 for missing filing deadlines. At one point, Senator Pedro Espada owed the state about $13,000 in fines for misfiling records (while also sitting on about $60,000 in fines from the New York City Campaign Finance Board).
Earlier this year, a North Carolina judge ruled that the Secretary of State could not impose a $30,000 fine on a lobbyist who failed to register. The judge cited ambiguous language in the law and decided the Secretary did not have the proper authority.
Forty-one states have an agency tasked with overseeing ethics laws in the state. But many of these agencies are crippled by shortages: inadequate funding, tiny staffs, and limited powers. Delaware’s two-person Public Integrity Commission can hardly keep up with enforcing rules for about 48,000 government employees. In South Carolina, the State Ethics Commission’s budget has been slashed six times in the past three years. When legislators in Alaska leave required information off their financial disclosure forms, the Alaska Public Offices Commission simply does not have the capacity to track down the missing details.
“There’s an inability to enforce the laws on the books,” said Hobert Flynn of Common Cause. “It creates a real crisis and the illusion of strong laws in place.”
In Pennsylvania, said Potts of Democracy Rising PA, the amount of money allocated for enforcement of ethics rules is considered “budget dust.” Governor Tom Corbett cut funding to the state’s ethics commission by five percent in his most recent budget plan, even though the state sits on a surplus that Potts said could “fund all public integrity enforcement for a decade.”
And in states where the financial outlook is still grim, watchdog agencies are often among the first to get cut, consolidated or eliminated entirely. In Connecticut, nine independent agencies were moved under one umbrella organization, the Office of Governmental Accountability. Advocates claim the move saves money and improves efficiency, but critics point to a massive reduction in staff and loss of enforcement power — the agency will likely audit only 10 lobbyists this year, compared with 40 lobbyists the year before.
While there are many examples that highlight a lack of resources, others assert that political factors may also be at play.
Georgia’s legislature slashed the ethics commission’s budget, eliminating all investigative positions and eventually forcing out its two top staffers. The former executive director claimed the funding cuts came with ulterior motives; at the time, the agency was pursuing an investigation against Governor Nathan Deal for improper use of campaign funds and exceeding campaign finance limits. Deal said the cuts were in line with what happened to other agencies. The state’s inspector general followed with an investigation, but found no evidence to support the claim of the commission’s former executive director.
Political loyalties can be a potential problem, especially since many ethics agencies are staffed by gubernatorial or legislative appointments.
New York Governor Andrew Cuomo revamped the state’s ethics agency as part of a comprehensive overhaul of state ethics laws. But he stocked the newly-formed Joint Commission on Public Ethics with political allies, including a fundraiser for his reelection campaign and a former staffer. Most recently, he tapped Inspector General Ellen Biben to be the commission’s executive director. Biben, though widely respected in government circles, also served as Cuomo’s deputy in the attorney general’s office, prompting some New Yorkers to question her independence from the administration.
Members of the Alaska Personnel Board are appointed by the same entity they are charged with overseeing — the governor’s office. The Texas Ethics Commission is comprised of appointees by the governor and legislature, which not only presents an inherent conflict but often leads to gridlock. Commissioners are typically split along party lines, but in order to pursue an investigation, at least six of the eight commissioners must agree.
Conflict? What conflict?
Without effective oversight by an independent agency, states frequently rely on a system of self-reporting. The onus falls on public officials to decide for themselves whether their decision-making ability has been compromised. In some cases, the language of the law allows for exceptions; Montana requires legislators to disclose a conflict only if they stand to gain a “direct and personal impact” from the relationship. Often consequences are modest or nonexistent. In Illinois, a legislator should avoid a “substantial threat to his independence of judgment” — but if that line is crossed, there is no penalty.
Kerns of NCSL said it is difficult to implement strong conflict of interest laws, especially for citizen legislatures in which lawmakers almost always hold outside jobs. She doesn’t see anything inherently wrong with that — their background and expertise can be helpful for making policy decisions — unless the lawmaker stands to gain financially from the decision.
“That defies logic,” she said. “People should have better sense.”
Michigan’s conflict of interest laws are largely undefined, so recusal is rare. In 2011, Senate Democrats challenged the notion that lawmakers with a financial interest in limited liability corporations could vote on a tax reform plan. The lieutenant governor ruled that it was up to the lawmakers to decide for themselves if they had a conflict, and no one abstained.
A Hawaii representative, also working as a lobbyist for the American Chemistry Council, was allowed to vote on a bill that would implement a 10-cent fee for plastic bags. The House Speaker defended the decision: "Just because he represents that company does not mean he cannot vote up or down on the measure.”
For state judges, it’s a similar situation. Nearly all states have rules, codes, or regulations outlining recusal requirements, but again they leave it up to the judges to decide their own impartiality.
“There’s a longstanding principal that no judge should be the judge in his or her own case,” said Charlie Hall, director of communications for Justice at Stake, a national organization that promotes a fair and impartial court system. “There’s a strong sense by many that if one party asks a judge to step aside, there’s something not satisfying by the judge saying, ‘I think I can be impartial. I can make the decision.’ ”
Nine states don’t require judges to disclose outside assets, making it almost impossible to determine if a judge has a conflict at all. And in states where judges run for election, the potential for conflicts to arise is even greater.
“Special interests have discovered judicial elections and the money is pouring in,” Hall said.
Spending on judicial elections more than doubled in the past 20 years. From 2000 to 2009, special interests funneled about $206 million into court elections, up from about $83 million in the previous decade.
Hall said many states are moving forward, albeit slowly, to develop more transparent processes for judicial recusal. But in at least one state — Wisconsin — the courts took what some believe to be a huge step backwards. In 2010, the state Supreme Court ruled that judges need not recuse themselves from cases involving their own campaign donors.
The devil’s in the details: Where the loopholes are
Even the strictest of rules has unforeseen consequences. And when it comes to money, influence, and power in state government, interest groups and big-money donors will find ways around just about any limit.
In South Carolina, corporations and individuals can donate only $1,000 to local House and Senate races or $3,500 to statewide seats. But multi-millionaire Howard Rich skirted the limits by funneling contributions through separate LLCs. He also made the contributions during a “blackout period” — two weeks right before the election when candidates can hold off making donations public until after the election.
Illinois, which passed campaign finance limits for the first time in 2009, places no restrictions on donations by a corporation’s affiliates. So although a corporation is restricted by a $10,000 limit on donations to individual candidates, it can easily multiply that amount through individually incorporated entities.
New York donors can also give freely to “housekeeping accounts,” ostensibly reserved for political party headquarters, staff, and events not affiliated with a particular candidate. Big-time donors, corporations, and trade organizations have donated $11 million to these accounts in the past two years.
Gift bans seek to prevent lobbyists from wining-and-dining legislators to influence policy. Some states, like Missouri, place no restrictions on dollar amounts of gifts, as long as all gifts are disclosed. Other states have much more stringent rules, like in Florida, where lobbyists are banned from buying lawmakers even a cup of coffee.
But even when the laws have been retooled and seem airtight, lobbyists find ways around them. In Oregon, where the gift laws were reformed in 2007 and again in 2009, the language of the law has become so specific in noting exemptions that it’s easy to skirt: entertainment excursions can technically be billed as “fact-finding” missions, for example, which is acceptable under the law. In 2006
North Carolina passed a ban on lobbyists buying meals for individual legislators. So instead, lobbyists bankroll receptions for groups of lawmakers. Florida has a strict ban on lobbyist gift giving, but the state’s definition of lobbyist allows for gaps — not everyone who lobbies is considered a lobbyist under the law — and much of the spending can go unreported.
The lobbyist-lawmaker relationship is a close one in many states, where part-time legislators who meet for short sessions often rely on outside expertise to guide their policy decisions. Those relationships become even stronger when ex-legislators move almost immediately into the private sector, exerting influence over their former colleagues. “Cooling off” periods — the length of time between when a legislator leaves office and when he can register as a lobbyist — aim to diffuse those relationships.
But in some states, there’s no such waiting time. In Idaho, a former legislator, after losing her reelection campaign, was quickly hired as the lobbyist for a property developer — a move not only accepted, but recommended by the House Speaker.
The same holds true in Nebraska, where at least 16 former lawmakers are now registered lobbyists. There, as in other states, term limits push lawmakers out into the private sector, so it is not unusual for former legislators to represent special interests like Big Tobacco and health insurance companies.
Closed to the public
California faced a $23 billion budget shortfall in 2011. The state opens up the budgeting process to the public — but only to a point. Citizens can participate in forums and meetings leading up to final budget negotiations, when the “Big Five” (the governor and four legislative leaders) take the discussion behind closed doors to finalize the bill.
Such is a common practice in many states, where open meetings and public testimony occur, but usually for the sake of appearance only. The real decisions are made when no one is looking.
According to the Index, California ranks near the bottom on budget transparency, losing points for citizen access to budget expenditures and public input at hearings.
New York, which faced a shortfall of $8.5 billion, falls a few places below California. Again, the public can view budget documents and comment at hearings on the front end, but the final bill is quickly pushed through, giving citizens little opportunity to react. The final budget often includes a few surprising compromises that were made behind closed doors.
Redistricting, a notoriously opaque and politically-tainted process in many states, is actually where California stood out. It received top marks for redistricting transparency, due largely to its new Citizens Redistricting Commission that gave power to a randomly-selected group of Californians instead of the legislature.
In other states, though, the redistricting process largely remains a mystery to constituents. Although the redrawing of district lines directly impacts voters and communities, the public is usually left out of the process. In a worst case scenario, maps are redrawn by the very legislators who are seeking reelection, allowing them to ensure the new district lines fall in their favor.
Many states are finding ways to include, or at least educate, the public on this process by holding meetings, making census data available online, or encouraging citizens to submit their own maps. But even if the state goes through those motions, it does not guarantee the public commentary will be taken into account in the final map.
Other states don’t even try. During the 2011 redistricting session in Wisconsin, Republican legislators unveiled map proposals, held one public hearing, and passed their plan in two weeks. In Oklahoma, meetings were held within days of census data being released, giving the public no real chance to provide strong input.
“The government belongs to the people,” said Common Cause’s Hobert Flynn. “They should have full access to the process and how decisions are made.”
It’s a noble goal, to be sure. But as the State Integrity Investigation reveals, it is one that’s rarely met.