Climbing New Mexico’s ethical mountain

New York is reputed (with justification) to have some of the dirtiest politics in the United States. It formed the meat and potatoes of the journalistic diet of the rakish tabloid (at least in the pre-Murdoch days) the New York Post, which has long been uncovering this corruption.

But when the editor the New York Post moved to Santa Fe and had an opportunity to observe New Mexico politics up close and personal, he had an interesting observation.

Every place in America, he said, has political corruption, but what makes New Mexico unique is that machinations that are illegal everywhere else are legal in New Mexico.

Of course all our corruption is not legal, evidenced by the cabinet officers and legislators, and a battery of lower-ranking offenders, who have gone to jail in recent years. A member of the state House running for re-election was just sentenced to jail time and a former state senator is currently doing a long term behind bars. Even our former governor but one, Bill Richardson, has been implicated in all manner of misdeeds but has been able to avoid criminal charges.

All this forms the background of a proposed constitutional amendment that is one the most interesting items on the November ballot. Unlike a lot of constitutional provisions added to past election ballots, this one is relatively clear and transparent (a nice virtue for a provision that aims to make politics and government more transparent).

It proposes “to create an independent ethics commission with jurisdiction to investigate, adjudicate and issue advisory opinions concerning civil violations of laws governing ethics, standards of conduct and reporting requirements as provided by law.”

Simple, right? Well, not entirely. In fact, it is a lot less simple than it appears. And what it doesn’t say may be a lot more important than what it does.

The effort to create an independent state ethics commission has been long and frustrating. All polls show a majority of voters supporting the concept. It has repeatedly passed the House of Representatives by large margins. What has stymied it has been veto threats by Gov. Susana Martinez and the opposition of a few powerful senators, most of them Republican.

The Legislature finally found a way around the governor’s opposition by passing a resolution proposing the measure as a constitutional amendment to be voted on in the November election.

A brief detour is necessary to discuss this process. The state’s constitution is one of the longest of any state’s, largely because of its hundreds of amendments. Most of these amendments could have been dealt with by ordinary laws, but the Legislature chose to propose to amend the constitution to circumvent opposition by the governor. Using the amendment route neatly removes the governor from the process.

Such has been the case with the ethics amendment. Nothing in the constitution prohibits the Legislature from passing an ordinary law creating an ethics commission. In fact, if the voters approve the commission, it won’t exist until the Legislature passes a law appointing its members, appropriating money to operate it and setting up a staff.

This all introduces the major objection to the constitutional amendment, that it is both unnecessary and insufficient—unnecessary because a simple law would do fine and insufficient because it only creates a paper commission, not a functioning institution.

There is a further objection: most of departments and branches of state government already have ethics rules and bodies to enforce them. Why, then, do we need another?

The answer is simple: What we have now doesn’t work very well. The rules are obscure, vague, contradictory and to a substantial degree, unenforced. Yes, a handful of people have gone to jail, but thousands of other instances of clear ethical misbehavior, ranging from sexual aggression to dirty campaigning to political payoffs to petty theft, have gone unpunished.

The new commission could remedy all these deficiencies. It could set out a clear set of rules that would be uniform throughout the state government, and then make sure these rules are followed. In doing so, it can write new rules, which would probably be a lot more stringent and more encompassing than the latticework of existing regulations.

When violations are alleged, it can investigate. It can—despite a lot of initial opposition to the idea—subpoena witnesses and documents and make public reports. What it cannot do is file criminal charges, send anybody to prison or even fire an offender. The hope however—and it is reasonable one—is that publicizing an offense will have serious consequences for an offender.

Moreover, the commission will have jurisdiction not only over state officials but also lobbyists, political candidates, government contractors and “other participants in elections.”

Here is how the commission would work. It would consist of seven members. The governor will appoint one member. The majority and minority leaders of the House and Senate would each appoint one member, with the remaining two members named by these four. No more than three members could be from the same political party, thus requiring the appointment of at least one independent or minor-party member. Assuming, as is likely, that there will be three Republicans and three Democrats, this seventh person (independent, Green, Libertarian or whatever) could well become the swing voter.

Before the commission can meet, the Legislature will have to set the terms and qualifications of the commissioners and then appoint them. The Legislature can pass laws further extending the jurisdiction or powers of the commission “as provided by law,” which is further evidence that the constitutional amendment itself was legally unnecessary.

Also, the Legislature will have to pass a law giving the commission the money to operate. This could be where the real fight will be. Will there be a substantial and well paid staff? Will there be an experienced and skilled staff director? Will there be money to hire lawyers and investigators? I would not put it past the Legislature to try and defang the commission through the legislative process.

With all that is lacking in the constitutional amendment, it is still the beginning of a significant process. Only five other states (all of them in the West) lack such a commission. Efforts to create one here go back many years. Every time there is a high-profile scandal demands surface to create one.

Even if corruption New Mexico-style is not as widespread as I and many others believe, the commission would still be valuable on several grounds. Its mere existence might help deter violations. Its creation would demonstrate incontrovertibly that the voters care about governmental and political ethics. And it would serve as a focus of public attention on allegations and investigations of ethical violations.

Most of the public interest groups in New Mexico, led by Common Cause, strongly support this amendment. There is no organized campaign against it. I am going in this next sentence to step out of my usual role as a neutral observer.

Please support it.