Lawmakers seek to police selves

By Jon Ralston (contact)

Wednesday, March 4, 2009 | 2:01 a.m.

State lawmakers, taking a pause from The Great Budget Debate of 2009, are preparing to stand tall for an important constitutional principle.

They will tell you that tenet is a bedrock of our form of government — the separation of powers, the freedom of the legislative branch to repel intrusions from the executive branch.

But this is about an even more important, fundamental precept of governing here in the capital — in order to form a more perfect Assembly and Senate, to promote the general welfare of the Gang of 63, they must exercise the right to be judged only by their colleagues.

Indeed, Senate Bill 160, now working its way through the process, is more of a legislative declaration of independence from the state Ethics Commission. When in the course of legislative events, it becomes necessary for lawmakers to dissolve any semblance of propriety to throw off the fetters of ethical conduct, they must feel free to pursue life, liberty and the pursuit of conflicts of interest.

My capital ’tis of thee, sweet land of liberty, of Carson City I sing. The Founding Fathers would be proud of their legislative progeny here in Sweet Home Nevada.

The bill itself is born out of a Carson City court case that found state Sen. Warren Hardy, who doubles as the head of the business lobbying group Associated Builders and Contractors, was not subject to the state ethics panel because he is a legislator and it is in the executive branch. Before the state Supreme Court can weigh in with a final judgment, lawmakers are processing SB160, which is designed to say that legislators — and only legislators — can judge legislators.

According to the digest of the bill, the Dec. 22 case held that the Ethics Commission could not apply its laws “concerning disclosure, voting and abstention to State Legislators (they do deserve capital letters, don’t they?) because under the constitutional doctrines of separation of powers and legislative privilege and immunity, the Legislator’s own House is the only governmental entity that may sanction the Legislator for performing legislative actions.”

So, the bill mandates, lawmakers need only answer to a Select Committee on Ethics created this session, and they need not worry about that pesky ethics panel having any power to haul them into the stocks. After all, what right should the common folk have to file complaints against the actions of their State Legislators? Liberte, egalite, fraternite? Let them eat the ethics statute.

The constitutional principle itself seems sound and is embedded in common law for centuries. Congress, through ethics committees, judges its own members. And we know how well that works.

But any resemblance to other legislative bodies by the Nevada Legislature is purely accidental and certainly not analogous. Why?

Senators and congressmen are not part-time lawmakers who have, as the law here states, “a commitment in a private capacity to the interest of others.” The reason Hardy’s job is so problematic is that he has a commitment to a group dedicated to passing or killing certain laws, which is impossible to reconcile with his elected job.

It’s bad enough that we have teachers and local government employees and lawyers with clients serving here — those too have inherent conflicts. But Hardy’s position with ABC is much more of a direct conflict.

Having followed the Ethics Commission for two decades, I am intimately familiar with its deficiencies. But the point of having one is not, as many in the public believe, to sanction lawmakers — that’s the voters’ job in the next election. But as a forum to highlight violations of the laws — and possibly lead to charges from law enforcement agencies if not punishment from the electorate — it has proved invaluable. The Nevada political trash heap is littered with the bodies of former elected officials who lost because of transgressions highlighted by the ethics panel.

SB160 would change all of that and invest all of the electorate’s faith in the ability of a lawmaker’s colleagues to punish him or her for not disclosing or voting with a private interest instead of the public interest. There are not too many legislative Jose Cansecos in my experience, those willing to out teammates who do not want to upset what is an enjoyable — and sometimes profitable — system.

But the Gang of 63 apparently holds the truth self-evident that they should be allowed to police their own behavior, thus imbuing the process with partisanship and coziness. So they are setting about to secure the blessings of liberty to themselves and establish for posterity the further diminishment of ethics in Carson City.