This initiative might sail through because no one can attack it. I'm sure the legislators see its problems, but they can't speak against it without looking like they have something to hide.
This is why I feel compelled to come forward. First, I never ran for office. Until recently I never thought that I would do anything political, so I have no political baggage that prevents me from speaking out. Second, as someone trained in law (BYU Law School, 1995), I can see this bill's flaws. I am shocked and appalled to find a wolf under the sheep's clothing. And in an ethics reform bill, of all things!
I would really rather be programming my computer and selling software on the Internet (I don't practice law for a living). But I can't just do nothing while some sneaky people try to pull the wool over our eyes and place themselves in power over Utah.
I'm all for ethics. So are most Utahns. A new Deseret News/KSL-TV poll conducted by Dan Jones & Associates
finds that 85% of Utahns like the idea of an independent
ethics commission that would investigate charges of lawmaker
wrongdoing and make recommendations for discipline to the Legislature.
But the citizens ethical reform initiative currently being talked about is not the way to do it. Most citizens hear about the initiative and are initially for it. When citizens read this initiative, House Majority Whip
Brad Dee, R-Washington Terrace says that "when they do [read it], many change their mind, seeing how far-reaching it is."
This web site explains how the so called
ethical reform initiative is actually unethical itself. It
is a dream come true for someone who wants to politically assassinate any
legislator that they do not like.
The problems with this initiative are many. In no particular order:
- The Initiative is directed at legislators only. What about other public officials from your mayor to the Governor? Don't they need to be ethical too? This omission really makes me wonder. There are some things that only legislators can do. For example, only the legislature can ratify a proposed amendment to the U.S. Constitution. The integrity of the U.S. Constitution is in the hands of legislators of the fifty states. To me, this means that it is extremely important that the legislators in office are the ones elected by the people. No commission should be empowered to overrule the will of the people. We already have ways of dealing with issue when they come up. The recent, immediate resignation of two legislators demonstrates that we don't need a commission to perform a witch hunt.
- The Initiative was drafted without transparency. When the Legislature drafts proposed legislation, the entire process is visible to the public and subject to input from the public. Arguments for and against are heard and made part of the public record. You can read it or listen to the audio recordings. The record of proposed amendments is particularly valuable. This public record becomes the "legislative history" that is used by courts to determine the meaning of the law and the intention of the legislature.
In contrast, I have yet to see any "legislative history" of this Initiative. I never saw a draft prior to the final draft. Never heard any arguments about how something should be worded. Never heard of any public hearing or opportunity to offer a suggestion or even read it prior to its final version. I can't even determine for sure who was responsible for drafting it. It came out of a black box, the proverbial "smoke-filled room," and now is shoved down our throats as "the will of the people."
- The sponsors of this bill appoint themselves to unelected, unaccountable, lifetime positions of power. When the Sponsors explain it, they say a five-member ethics commission is appointed by the leadership of the legislature, drawn at random from a pool of 20 independent-minded citizens who are chosen by unanimous agreement of the president of the Senate, speaker of the House, and the two minority leaders of the Utah Legislature.
Sounds good when heard as advertised, but the proposed law goes out of its way to specify something very different. It goes out of its way in two ways:
1. There is a backup plan they don’t like to talk about. The two republicans and two democrats might not be able to agree on all of 20 names, along with the 20 persons agreeing too, by the stated date. So the Sponsor’s backup plan gives the power to select all 20 candidates to the Sponsors themselves. There is no provision that requires the Sponsors to consider any of the legislators’ candidates that they did agree on, if any. They get to start from scratch. This self-serving power grab, an unspoken backup plan hidden behind a fragile advertised plan, is enough for me to distrust the Sponsors. I smell a hidden agenda.
They tried to assure me that the backup plan is there to pressure the four legislators into unanimous agreement. Does this make it less self-serving? Only if you don't think it through. In a negotiation, the greatest power is walk-away power. The power to demand concessions will gravitate toward whichever legislator thinks most like the Sponsors, because that legislator is willing (or wanting) to let the whole process fall into the hands of the Sponsors. With total veto power, that legislator can demand anything. Thus, the will of the Sponsors can be exercised through pressure to demand concessions during the primary plan. Click here for more on the power of the Sponsors.
2. It is advertised that the five commissioners are chosen from the 20 randomly. If the proposed law had merely said it was to be random, then there would be a court-reviewable standard of randomness. Instead, the proposed law fails to require randomness, and goes out of its way to specify a method that is ripe for abuse by sleight of hand. It invents a new and unusual method of picking the five. It uses the word “random” not for how the commissioners are chosen but for who is doing the choosing, which is not the same thing. It's like it’s doing a limbo dance under the bar of randomness without ever actually touching it.
The first Vietnam draft lottery (in 1969) was done by pulling identical capsules out of a container that had been well mixed. Yet this lottery was determined to be not random and was replaced by a better method used in all subsequent draft years. The proposed law is even worse than this flawed lottery because this law does not sufficiently hide the names from all participants and it does not require any shuffling or mixing at all.
Of course, after the sponsors pick all 20 candidates, it won’t matter to them how the five are picked.
An independent commission to
oversee ethics reform for government sounds good on the surface, but
what's hidden inside this "reform" bill is a really big problem. The
Sponsors of this initiative are right; this initiative is all about
reform, but not in the way they lead people to believe.
Why can’t a more reasonable method be determined to choose these 20? Why can’t each side just pick 10? Or only require that 3 out of the 4 agree? Or have the entire legislature vote on any candidate anyone submits and pick the five with the highest number of votes? Almost anything is better than that unspoken plan that throws the power back to the self-appointed Sponsors.
- No checks and balances. This initiative creates a fourth branch of government with immunity from judicial, legislative, or executive branch oversight. Monarchy anyone? Or is that an oligarchy?
- Legislators no longer allowed to help constituents. Traditionally, members of the legislature often help their constituents, the people they represent, whether they are voters or not. However, this bill views actions taken on behalf of constituents unfavorably, as if they were attempts to gain political advantage, and makes them ethical violations and grounds for removal from the legislature.
It is my hope that we as Utahns can learn the truth about what is
really going on here and stand together. Let's not allow a handful of people who want to change the political landscape of Utah to take away our freedoms, liberties, and handcuff our elected
representative government.
Please refuse to sign their signature pages,
and tell your friends, family, and neighbors what is really going on with
this bill. If we don't stop this bill, the great state of Utah will never
be the same again.
In the mean time, if you do want ethical reform, put pressure on your elected officials to do it properly.
Peter H. Rehm
Orem, Utah
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