Why Does Max Brantley Keep Opposing Ethics Reform?
I was saddened, but not surprised, to see Max Brantley of the Arkansas Times continuing to attack the bipartisan ethics reform that Democratic Rep. Steve Harrelson and I proposed last year, which would have mandated full disclosure of all lobbyists’ gifts to legislators.
Yesterday, Max provided a flurry of arguments against our 2007 approach of writing reform into the House Rules. At least half of his arguments are flat wrong or irrelevant.
Max wrote that a rule is not law. He is flat wrong: a House rule has binding legal authority, and it can modify or supersede other legislation, or even the actions of people who don’t serve in the House. (Ask Dwayne Dobbins if you don’t believe me – or see House Rule 106 if you want an example of a rule that accomplishes what legislation constitutionally cannot.)
Max also wrote that a rule can’t cover lobbyists. Again, he is flat wrong: Pennsylvania’s lawmakers, to take just example, have passed legislative rules that prevent lobbyists from plying their trade if they violate ethics standards. Max finally wrote, irrelevantly, that there are plenty of loopholes under the existing law. Here, he simply ignores the effect of our rule, which would have been to eliminate most or all of those loopholes.
Last year, with some public support, I think we would have had a reasonable chance of achieving full gift disclosure in the House via rule. By force of example (or, less charitably, public pressure), a similar rule could have spread to the Senate. If we reached this point, it would only be a tiny step to getting bicameral legislation on the books.
But Max has a better idea: legislation or nothing. Anything but legislation that covers both chambers equally and immediately is unacceptable.
Consider, for a moment, the consequences of his strategy. Last year, we passed a gift ban through the House, which died in the Senate State Agencies Committee. This is what observers of legislatures sometimes call a “sham vote,” because although it is terrific theater, it accomplishes nothing. Perhaps in next year’s session we can continue the Max Brantley strategy by passing a gift ban through the Senate and having it die in the House. Then we will have had yet another sham vote, and incumbents in both chambers can then take credit for ethics reform—and yet, mysteriously, no ethics reform will be enacted.
This does not further the interests of the public—with the possible exception of those members of the public who are also state legislators concerned about re-election—but at least Max will be gratified that his strategy was followed.
I suspect that, in moments of relative calm, even Max Brantley would concede that passing any meaningful ethics legislation will be a steep uphill battle in the General Assembly, and the most likely route to passage is an initiated act passed directly by Arkansas voters. If this is true, it is hard to take Max’s continuing pleas to state legislators—to become personally active on ethics reform—at face value. It does, however, give him something to get angry about.
Max ends his latest epistle by asking “Get it now, Dan?” Oh, I get it all right. I get that Max is more emotional than rational about ethics reform and that he is, once again, personalizing a difference of opinion. Nothing he has written changes my judgment of yesterday that, on ethics reform, Max’s pronouncements probably shouldn’t be taken very seriously.
1) Your rule did not cover lobbyists.
2) Your rule did not affect the practice of “splitting,” “stacking” and “grouping” by which lobbyists evade statutory disclosure rules or provide a means to diminish the obvious value of a gift, when they observe the rules at all.
3) Your rule provided no enforcement provision. It’s akin to the conflict of interest disclosure rule that is only sporadically observed by members.
4) You ask House members to, by some means, sit in judgment of other members on failure to report free meals. Congress offers testimony to the difficulty of this approach. It is a much tougher assignment than voting against seating a felony sex offender.
Max’s latest comment only underscores the fact that, despite writing about ethics reform proposals multiple times, he hasn’t bothered to think about them before expressing an opinion on them.
Max writes that the proposed rule wouldn’t have affected ‘splitting’. This criticism is clearly wrong. Because the rule would have mandated full disclosure of all gifts from lobbyists with no thresholds, splitting would no longer have been a way to get around the rules.
He writes that the rule provided no enforcement provision. This criticism is groundless, because the proposal is an amendment to the House Rules, which provide for expulsion in the case of violation of House Rules.
He writes that the rule did not cover lobbyists. Again, he is clearly wrong: the rule would have mandated full disclosure from all lobbyists. What he is miffed about, of course, is that the rule didn’t cover lobbyists the way he wanted it to.
Max’s criticisms seem to boil down to anger that our reform proposal was not identical to the one that he favors, or anger that our proposal was imperfect. Of course, Max’s standard of perfection is one that is hard to meet, and he recognizes this by acting as if the imperfections of his preferred approach that I raised in the main body of the post do not exist.
It seems to me that Max has demonstrated — over and over — that he doesn’t want to have a serious discussion about ethics reform, that he prefers anger to analysis, and that it is a mistake to take his pronouncements on ethics reform very seriously.