This afternoon, the Senate is scheduled to consider SB1029. The bill, sponsored by Senator Keith Ingram, would require candidates for public office to undergo criminal background checks as part of the initial filing process. Sounds like a great idea, right? Let’s take a closer look.
Here is the process required by the bill:
1. When a candidate files for office, they must file a criminal background check waiver at the same time (and bear the cost of the check).
2. The waiver is signed by the candidate and then sealed, exempting it from the Freedom of Information Act.
3. The waiver is then transmitted by the county clerk or the Secretary of State to the state police so the background check can be conducted.
4. Within 7 days, the candidate will be notified in writing of any convictions/criminal history.
5. The candidate will then be given the option to withdraw from the race.
As a reasonable person can see, this bill raises many concerns — perhaps more than it addresses. Most of the problems stem from the fact that the bill keeps the results of the background check secret, away from the public eye. What good does this accomplish? Don’t most people know the details of their own criminal record? You would expect candidates for office to have an even keener understanding of their nefarious past deeds, given that such matters will likely be brought up by their opponents.
It is central to self-government that the people have some knowledge of whether candidates have a criminal record. I can’t imagine anything more relevant to the evaluation of candidates than the nature of any criminal records they have. In fact, it’s insulting to voters that the state wants to compile all of this information about criminal records and then hide it from the public. It’s impossible for me to see how this is good public policy.
In addition, imposing secrecy on these records encourages more corruption in the system. For instance, towards the end of Sen. Ingram’s bill, it states that if a candidate is elected who has convictions that disqualify him/her, they can be fined after removal from office — but with no public scrutiny given to the records, why would anyone be removed from office? No one will know about the convictions except for the candidate themselves and those in possession of the secret files. This system could create a great deal of corruption. It seems to invite the possibility that certain candidates might be protected from having their records exposed, while others who do not curry favor with the state might be removed. Relatedly, it is highly unclear why the bill requires all of the conviction records to be compiled and sent to our state’s attorney general. If there is no automatic removal process, a more efficient means of political pressure by an overly political attorney general is hard to imagine.
It should also be noted: criminal records are already public information in Arkansas. They are just difficult to uncover because of the archaic nature of the system. Senator Ingram’s oddly pointless proposal to keep these records secret is a step backwards for government transparency and accountability. It is like a weird parody of the old joke about bureaucratic processes, in which a filing clerk is required to copy and file all the documents he receives and then shred the originals. This bill is worse than that, of course, because the pointless paperwork exercise that this bill requires will be accompanied by a new fee imposed on every candidate for public office.
It also seems problematic that candidates who are found to have convictions are merely given the option to leave the ballot rather than being removed automatically. Does Senator Ingram believe it is good public policy to have ineligible candidates on Arkansas ballots? And that their ineligibility should be secret from the people of Arkansas? It seems that this will only invite more corruption into the process and perhaps leave more Arkansans without the representation they choose — as we saw in the 2011 General Assembly, after several candidates were barred from taking from office due to previous convictions, leaving two districts unrepresented by the voters’ choices.
Finally, having secret background checks is especially strange because no one knows what exactly what crimes are disqualifying. The state constitution says “infamous crimes” are disqualifying, but experts disagree about what “infamous” means. Given that the definition of what disqualifies a candidate could change in the future, it seems particularly important that we make these records public so we can continue to have a public discussion.
Having public criminal background checks for candidates is an excellent idea. But having secret criminal background checks for candidates is a horrid idea. Responsible reform would require background checks that are public. SB 1029 would only invite more corruption, and it would move meaningful reform further down the road.
If you’d like to read more about the right to know about criminals in government, check out AAI’s Action Plan, starting on page 69.