SERIOUS ETHICS AND PROCESS REFORMS TO PUT UTAH VOTERS BACK IN CHARGE OF THEIR STATE GOVERNMENT
Utah voting participation drops lower and lower every election year. Correspondingly, the disconnect between policies legislators adopt and what voters actually prefer, increases. There may be several dynamics responsible, but the following five contributors to public cynicism about legislators and the legislative process bear close attention. First, Utah has become a single-party state, with a legislature which itself, because of relentless boundary gerrymandering, is comprised of mostly single-party districts, some of which are Democratic, a super majority of which are Republican. This means that whoever secures the nomination for the dominant political party in those districts is virtually assured of victory in the general election. Many voters just don’t bother to participate, because they don’t feel their vote counts and legislators don’t represent their interests anyway; in other words, “it doesn’t matter.”
Second, the candidate nomination process is carefully designed to minimize broad voter participation and favor the reelection of incumbents who pass ideological litmus tests. Legislators pay the closest attention to those who have the greatest influence on their own reelection: (a) the sources of campaign money; and (b) the ideological zealots who play the greatest role in the nomination process. Most Utahns are closer to the middle of the political spectrum; the legislature, however, tilts far-right. Here’s why. Whereas nearly all the states use some form of direct primary nomination system, which promotes broad public participation, Utah’s convention nomination system favors a relative handful of ideologically-driven insiders – less than 1% of all registered voters – who exercise vastly disproportionate power over the selection of candidates who shall be allowed to run for office. The timetables and procedures for critical election events and processes are controlled by the legislature, which has a vested interest in making election challenges against incumbent legislators as difficult as possible.
The key means of blocking election challenges are: (a) compressing the election calendar to make organizing a challenge as difficult as possible; (b) allowing political parties to establish and change voting district caucus locations with little or no notice to voters at large; (c) allowing political parties to apportion convention delegates with no requirement for following the equal protection principle of one-person-one-vote; (d) allowing political parties to provide for the elimination of contenders by a diminishing majority of delegate votes – under the guise of eliminating “frivolous” candidacies; (e) scheduling the primary election in the summertime when many voters are vacationing. For approximately 80% of Utah’s legislative districts, the real election is over either by May 15th or June 30th. The general election is simply a coronation of a result pre-dictated by a gerrymandered and rigged nomination system, all perfectly legal – courtesy of a legislature that is, understandably, election-risk averse.
Third, there is more money sluicing through Utah’s political system than ever before, completely unlimited and mostly unregulated. Campaigns have become increasingly expensive (although one reason may be the Field of Dreams Political Corollary: if candidates are given money, they will generally spend it). Some senate races cost $200,000; house races may cost $70,000. These are part-time positions which pay next to peanuts. The critical question raised by these very large sums of money pumped into campaigns is simple: to what extent do campaign contributions affect access and floor votes? Lately, additional level of solicitations for money by legislators have been injected as well: so-called “leadership PACs” and “legislative caucus PACs” or special project PICs established by individual legislators for the purpose of promoting a legislative agenda or their personal power. There is little voter appetite for publicly financing political campaigns; however, this doesn’t mean that voters necessarily endorse as good government the process that allows candidates to receive “huge” (as opposed to “small” or “modest” or “large”) contributions from special interest groups or individuals. Whatever voter tolerance may be for “the usual course of business” with respect to a candidate soliciting contributions for his own campaign, there is a serious question of propriety and process integrity where elected legislators then go back to the same special interests, over and over, with their hands out for even more money for that legislator’s additional pet projects.
At what point is a legislator actually, or through perception, becoming beholden to someone other than the voters? Most Utah legislators rely on PACs for 80% of their campaign money. Many legislators raise a significant majority of their money from outside their districts. Leadership and caucus PACs and special project PICs rely 100% on special interest money. Is this just “friends helping friends,” or does so much money create the expectation of (and the willingness to give) a quid pro quo? In 2008, one former legislator gave sworn testimony that she had been offered $50,000 if she would vote for a particular bill; another sitting legislator stated that he had been offered a similar sum for the same vote; a third resigned over charges that he had offered another candidate a huge salary increase if that candidate would withdraw. Criminal charges in the latter case are pending.
Fourth, the legislature’s own code of conduct is so vague that the House Ethics Committee concluded in a 2008 investigation that it could not determine what conduct was precluded under the code and what was not. While voters might assume that legislators would inherently sense the appropriate boundaries of common integrity, fiduciary trust, self-restraint, conflict of interest, abuse of power, and avoiding even an appearance of evil, some who are elected to office feel unconstrained without a bright-line prohibition against self-aggrandizement. A workable code of conduct would have the salutary effect of keeping honest people honest in an environment where the temptations to self-deal are everywhere. Perhaps the most inimical threat to the public interest is a legislator’s sense of entitlement. Explaining why lobbyist-provided food and entertainment is entirely acceptable, one senator said, “We sacrifice time with our families and spouses to come to Salt Lake, and [watching the Jazz or playing golf or eating at pricey restaurants] makes up for that sacrifice.” Of course, no one is forced to run for these positions if the sacrifice is deemed so unpleasant.
Fifth, the legislature’s mechanism for policing itself is irreparably broken, rendering any code of conduct unenforceable so long as legislators are responsible for policing themselves. Four examples of the problem: (a) only legislators may file complaints of violations; (b) ethics committees vote along partisan lines; (c) the standard of proof for a violation is subject to manipulation at the front-end of an investigation, making it impossible to establish that a violation occurred, particularly where; (d) committee membership is evenly divided, making a partisan split an effective vehicle for stymieing any substantive finding of an ethical violation.