Trouble in America’s statehouses: secrecy, questionable ethics and conflicts of interest
In November 2014, Arkansas voters approved a ballot measure that, among other reforms, barred the state’s elected officials from accepting lobbyists’ gifts. But that hasn’t stopped influence peddlers from continuing to provide meals to lawmakers at the luxurious Capital Hotel or in top Little Rock eateries like the Brave New Restaurant; the prohibition does not apply to “food or drink available at a planned activity to which a specific governmental body is invited,” so lobbyists can buy meals so long as they invite an entire legislative committee.
Such loopholes are a common part of statehouse culture nationwide, according to the 2015 State Integrity Investigation, a data-driven assessment of state government by the Center for Public Integrity and Global Integrity. The comprehensive probe found that in state after state, open records laws are laced with exemptions and part-time legislators and agency officials engage in glaring conflicts of interests and cozy relationships with lobbyists. Meanwhile, feckless, understaffed watchdogs struggle to enforce laws as porous as honeycombs.
Take the Missouri lawmaker who introduced a bill this year — which passed despite a veto by the governor — to prohibit cities from banning plastic bags at grocery stores. The state representative cited concern for shoppers, but he also happens to be state director of the Missouri Grocers Association, and is just one of several lawmakers in the state who pushed bills that synced with their private interests.
Or the lobbyist who, despite a $50 cap on gifts to Idaho state lawmakers, spent $2,250 in 2013 to host a state senator and his wife at the annual Governors Cup charity golf tournament in Sun Valley; the prohibition does not apply to such lobbying largess as long as the money is not spent “in return for action” on a particular bill.
In Delaware, the Public Integrity Commission, which oversees lobbying and ethics laws for the executive branch there, has just two full-time employees. A 2013 report by a special state prosecutor found that the agency was unable “to undertake any serious inquiry or investigation into potential wrongdoing.”
And in New Mexico, lawmakers passed a resolution in 2013 declaring that their emails are exempt from public records laws — a rule change that did not require the governor’s signature. “I think it’s up to me to decide if you can have my record,” one representative said.
These are among the practices illuminated by the State Integrity Investigation, which measured hundreds of variables to compile transparency and accountability grades for all 50 states. The results are nothing short of stunning. The best grade in the nation, which went to Alaska, is just a C. Only two others earned better than a D+; 11 states received failing grades. The findings may be deflating to the two-thirds of Americans who, according to a recent poll, now look to the states for policy solutions as gridlock and partisanship have overtaken Washington D.C.
The top of the pack includes bastions of progressive government, including California (ranked 2nd with a C-), and states notorious for corrupt pasts (Connecticut, 3rd with a C-, and Rhode Island, 5th with a D+). In those New England states, scandals led to significant reforms and relatively robust ethics laws, even if dubious dealings linger in the halls of government. The bottom includes many western states that champion limited government, like Nevada, South Dakota and Wyoming, but also others, such as Maine, Delaware and dead-last Michigan, that have not adopted the types of ethics and open records laws common in many other states.
The results are “disappointing but not surprising,” said Paula A. Franzese, an expert in state and local government ethics at Seton Hall University School of Law and former chairwoman of the New Jersey State Ethics Commission. Franzese said that, with many states still struggling financially, ethics oversight in particular is among the last issues to receive funding. “It’s not the sort of issue that commands voters,” she said.
With a few notable exceptions, there has been little progress on these issues since the State Integrity Investigation was first carried out, in 2012. In fact, most scores have dropped since then, though some of that is due to changes made to improve and update the project and its methodology.
Since State Integrity’s first go-round, at least 12 states have seen their legislative leaders or top cabinet-level officials charged, convicted or resign as a result of ethics or corruption-related scandal. Five house or assembly leaders have fallen. No state has outdone New York, where 14 lawmakers have left office since the beginning of 2012 due to ethical or criminal issues, according to a count by Citizens Union, an advocacy group. That does not include the former leaders of both the Assembly and the Senate, who were charged in unrelated corruption schemes earlier this year but remain in office.
New York is not remarkable, however, in at least one regard: Only one of those 14 lawmakers has been sanctioned by the state’s ethics commission.
Grading the states
When first conducted in 2011-2012, the State Integrity Investigation was an unprecedented look at the systems that state governments use to prevent corruption and expose it when it does occur. Unlike many other examinations of the issue, the project does not attempt to measure corruption itself.
The 2015 grades are based on 245 questions that ask about key indicators of transparency and accountability, looking not only at what the laws say, but also how well they’re enforced or implemented. The “indicators” are divided into 13 categories: public access to information, political financing, electoral oversight, executive accountability, legislative accountability, judicial accountability, state budget processes, state civil service management, procurement, internal auditing, lobbying disclosure, state pension fund management and ethics enforcement agencies.
Experienced journalists in each state undertook exhaustive research and reporting to score each of the questions, which ask, for example, whether lawmakers are required to file financial interest disclosures, and also whether they are complete and detailed. The results are both intuitive — an F for New York’s “three men in a room” budget process — and surprising — Illinois earned the best grade in the nation for its procurement practices. All together, the project presents a comprehensive look at transparency, accountability and ethics in state government. It’s not a pretty picture.
“Across the board, accessing government has always been, but is increasingly, a barrier to people from every reform angle.”
– Jenny Rose Flanagan, vice president at Common Cause
Downward trend, blips of daylight
Overall, states scored notably worse in this second round. Some of that decline is because of changes to the project, such as the addition of questions asking about “open data” policies, which call on governments to publish information online in formats that are easy to download and analyze. But the drop also reflects moves toward greater secrecy in some states.
“Across the board, accessing government has always been, but is increasingly, a barrier to people from every reform angle,” said Jenny Rose Flanagan, vice president for state operations at Common Cause, a national advocacy group with chapters in most states.
No state saw its score fall farther than New Jersey, where scandal after scandal seems to have sunk Gov. Chris Christie’s presidential aspirations deep into the muck of the state’s brawling, back-scratching political history. New Jersey earned a B+, the best score in the nation, in 2012 — shocking just about anyone familiar with the state’s politics — thanks to tough ethics and anti-corruption laws that had been passed over the previous decade in response to a series of scandals.
None of that has changed. But journalists, advocates and academics have accused the Christie administration of fighting and delaying potentially damaging public records requests and meddling in the affairs of the State Ethics Commission. That’s on top of Bridgegate, the sprawling scandal that began as a traffic jam on the George Washington Bridge but has led to the indictments so far of one of the governor’s aides and two of his appointees — one of whom pleaded guilty to conspiracy charges — and even to the resignations of top executives at United Airlines. As a result of these scandals and others, New Jersey dropped to 19th place overall with a D grade.
Admittedly, it’s not all doom and gloom. Iowa created an independent board with authority to mediate disputes when agencies reject public records requests. Gov. Terry Branstad cited the state’s previous grade from the Center when he signed the bill, and the move helped catapult Iowa to first in the nation in the category for access to information, with a C- grade (Iowa’s overall score actually dropped modestly).
In Georgia, good government groups latched on to the state’s worst-in-the-nation rank in 2012 to amplify their ongoing push for reforms. The result was a modest law the following year that created a $75 cap on the value of lobbyists’ gifts to public officials. The change helped boost the state’s score in the category of legislative accountability to a C-, sixth-best in the nation.
Perhaps the most dramatic reforms came in Virginia, where scandal engulfed the administration of outgoing Gov. Robert McDonnell in 2013 after it emerged that he and his family had accepted more than $170,000 in loans and gifts, much of it undisclosed, from a Virginia businessman. McDonnell and his wife were later convicted on federal corruption charges, but the case underscored the state’s woefully lax ethics laws and oversight regime; Virginia received an overall F grade in 2012. At the time, there was no limit on the value of gifts that public officials could accept, and they were not required to disclose gifts to their immediate family, a clause that McDonnell grasped at to argue that he had complied with state laws. (Appeals of the McDonnells’ convictions are pending.)
Over the next two years, newly-elected Gov. Terry McAuliffe and lawmakers passed a series of executive actions and laws that eventually led, in 2015, to a $100 cap on gifts to public officials from lobbyists and people seeking state business. They also created an ethics council that will advise lawmakers but will not have the power to issue sanctions. Advocates for ethics reform have said the changes, while significant, fall far short of what’s needed, particularly the creation of an ethics commission with enforcement powers. Still, they helped push the state’s grade up to a D.
States also continued to score relatively well in the categories for auditing practices — 29 earned B- or better — and for budget transparency — 16 got a B- or above (the category measures whether the budget process is transparent, with sufficient checks and balances, not whether it’s well managed).
In Idaho, for example, which earned an A and the second best score for its budget process, the public is free to watch the Legislature’s joint budget committee meetings. Those not able to make it to Boise can watch by streaming video. Citizens can provide input during hearings and can view the full budget bill online.
New York earned the top score for its auditing practices — a B+ — because of its robustly-funded state comptroller’s office, which is headed by an elected official who is largely protected from interference by the governor or Legislature. The office issues an annual report, which is publicly available, and has shown little hesitation to go after state agencies, such as in a recent audit that identified $500 million in waste in the state’s Medicaid program.
Unfortunately, however, such bright spots are the exceptions.
In 2013, George LeVines submitted a request for records to the Massachusetts State Police, asking for controlled substance seizure reports at state prisons dating back seven years. LeVines, who at the time was assistant editor at Muckrock, a news website and records-request repository, soon received a response from the agency saying he could have copies of the reports, but they would cost him $130,000. While LeVines is quick to admit that his request was extremely broad, the figure shocked him nonetheless.
“I wouldn’t have ever expected getting that just scot-free, that does cost money,” he said. But $130,000? “It’s insane.”
The cost was prohibitive, and LeVines withdrew his request. The Massachusetts State Police has become a notorious steel trap of information — it’s charged tens of thousands of dollars or even, in one case, $2.7 million to produce documents — and was awarded this year with the tongue-in-cheek Golden Padlock award by a national journalism organization, which each year “honors” an agency or public official for its “abiding commitment to secrecy and impressive skill in information suppression.”
Dave Procopio, a spokesman for the State Police, said in an email that the department is committed to transparency, but that its records are laced with sensitive information that’s exempt from disclosure and that reviewing the material is time consuming and expensive. “While we most certainly agree that the public has a right to information not legally exempt from disclosure,” he wrote, “we will not cut corners for the purpose of expediency or economy if doing so means that private personal, medi[c]al, or criminal history information is inappropriately released.”
It’s not just the police. Both the Legislature and the judicial branch are at least partly exempt from Massachusetts’ public records law. Governors have cited a state Supreme Court ruling to argue that they, too, are exempt, though chief executives often comply with requests anyway. A review by The Boston Globe found that the secretary of state’s office, the first line of appeal for rejected requests, had ruled in favor of those seeking records in only 1-in-5 cases. Needless to say, Massachusetts earned an F in the category for public access to information. But so did 43 other states, making this the worst performing category in the State Integrity Investigation.
While every state in the nation has open records and meetings laws, they’re typically shot through with holes and exemptions and usually have essentially no enforcement mechanisms, beyond the court system, when agencies refuse to comply. In most states, at least one entire branch of government or agency claims exemptions from the laws. Many agencies routinely fail to explain why they they’ve denied requests. Public officials charge excessive fees to discourage requestors. In the vast majority of states, citizens are unable to quickly and affordably resolve appeals when their records are denied. Only one state — Missouri — received a perfect score on a question asking whether citizens actually receive responses to their requests swiftly and at reasonable cost.
“We’re seeing increased secrecy throughout the country at the state and federal level,” said David Cuillier, director of the University of Arizona’s School of Journalism and an expert on open records laws. He said substantial research shows that the nation’s open records laws have been poked and prodded to include a sprawling list of exemptions and impediments, and that public officials increasingly use those statutes to deny access to records. “It’s getting worse every year,” he said.
After a series of shootings by police officers in New Mexico, the Santa Fe New Mexican published a report about controversial changes made to the state-run training academy. But when a reporter requested copies of the new curriculum, the program’s director refused, saying “I’ll burn them before you get them.”
In January, The Wichita Eagle reported that Kansas Gov. Sam Brownback’s budget director had used his private email address to send details of a proposed budget to the private email accounts of fellow staff members, and also to a pair of lobbyists. He later said he did so only because he and the rest of the staff were home for the holidays. But in May, Brownback acknowledged that he, too, used a private email account to communicate with staff, meaning his correspondence was not subject to the state’s public records laws. A state council is now studying how to close the loophole. A series of court cases in California are examining a similar question there.
Cuillier said in most states, courts or others have determined that discussions of public business are subject to disclosure, no matter whether the email or phone used was public or private. But the debate is indicative of a larger problem, and it reveals public records laws as the crazy old uncle of government statutes: toothless, antiquated appendages of a bygone era.
Weak ethics oversight
Governments write ethics laws for a reason, presumably. Public officials can’t always be trusted to do the right thing; we need laws to make sure they do. The trouble is, a law is only as good as its enforcement, and the entities responsible for overseeing ethics are often impotent and ineffective.
In many states, a complex mix of legislative committees, stand-alone commissions and law enforcement agencies police the ethics laws. And more often than not, the State Integrity Investigation shows, those entities are underfunded, subject to political interference or are simply unable or unwilling to initiate investigations and issue sanctions when rules are broken. Or at least that’s as far as the public can tell: many of these bodies operate largely in secret.
The Tennessee Ethics Commission, for example, rose in 2006 out of the ashes of an FBI bribery probe that had burned four state lawmakers. In its decade of operation, the commission has never issued a penalty as a result of an ethics complaint against a public official (it did issue one to a lobbyist). That may seem surprising, but the dearth of actions is impossible to assess because the complaints become public only if four of six commissioners decide they warrant investigation. Of 17 complaints received in 2013 and 2014, only two are public.
“There just haven’t been that many valid complaints alleging wrongdoing,” said Drew Rawlins, executive director of the Bureau of Ethics and Campaign Finance, which includes the commission.
In 2013, in a case that did become public, the commission decided against issuing a fine to a powerful lobbyist and former adviser to Gov. Bill Haslam who had failed to disclose that he’d lobbied on behalf of a mining company that was seeking a state contract. The lobbyist had maintained that his failure was simply an oversight, and only one commissioner voted to issue a penalty.
In Kansas, staff shortages mean the state’s Governmental Ethics Commission is unable to fully audit lawmakers’ financial disclosures, according to Executive Director Carol Williams. “We would love to be able to do more comprehensive audits,” Williams told the investigation’s Kansas reporter. Instead, she said, all her staff can do is make sure officials are filling out the forms. “Whether they are correct or not, we don’t know.” Only two states initiate comprehensive, independent audits of lawmakers’ asset disclosures on an annual basis.
The State Integrity Investigation found that in two-thirds of all states, ethics agencies or committees routinely fail to initiate investigations or impose sanctions when necessary, often because they’re unable to do so without first receiving a complaint.
“Many of these laws are out of date. They need to be revised,” said Robert Stern, who spent decades as president of the Center for Governmental Studies, which worked with local and state governments to improve ethics, campaign finance and lobbying laws until it shut in 2011. Stern, who is currently helping to write a ballot initiative that would update California’s ethics statutes, said that while he thinks the State Integrity Investigation grades are unrealistically harsh, they do reflect the fact that state lawmakers have neglected their responsibilities when it comes to ethics and transparency. “It’s very, very difficult for legislatures to focus on these things and improve them because they don’t want these laws, they don’t want to enforce them, and they don’t want to fund the people enforcing them.”
In 3-in-5 states, the project found, ethics entities are inadequately funded, causing staff to be overloaded with work and, occasionally, forcing them to delay investigations.
The Oklahoma Ethics Commission is charged with overseeing ethics laws for the executive and legislative branches, lobbying activity and campaign finance. This year, the commission operated on a budget of $1 million. In 2014, the nonprofit news site Oklahoma Watch reported that the commission had collected only 40 percent of all the late-filing penalties it had assessed to candidates, committees and other groups since it was created in 1990. Part of that failure was the result of a challenge to the commission’s rules, but Executive Director Lee Slater said that much of it was simply due to a lack of resources.
“Until about a month ago, we had five employees in this office,” Slater said. “We’ve now got six. Try to do it with six employees.” Slater said the commission this year began collecting all fees it is owed, thanks to the sixth employee — whose salary is financed with fees — and new rules that clarify its authority. But he said the agency simply does not have enough money to do what it ought to. “I’m not going to sit here and tell you that we do everything we should,” he said. “But I will tell you that we do the best that we can, whatever that is.”
Slater said he’s been told to expect a cut of between 5 and 20 percent to the commission’s appropriations next year ($775,000 of the commission’s current budget comes from appropriations).
Oklahoma is hardly an outlier. “They don’t have the resources,” Stern said, speaking of similar agencies across the country. “That’s the problem.”
New frontier points to old problem
Not long ago, journalists and citizen watchdogs were thrilled to get access to any type of information online. But standards have changed quickly, and many have come to expect government to not just publish data online, but to do so in “open data” formats that allow users to download and analyze the information.
“By making data available digitally, it can be more easily reused and repurposed,” said John Wonderlich, policy director at the Sunlight Foundation, an advocacy group. (Global Integrity consulted with the Sunlight Foundation when writing the open data questions for this project).
Only nine states have adopted open data measures, according to the Sunlight Foundation, some of which do little more than create an advisory panel to study the issue.
The 2015 State Integrity Investigation included questions in each category asking whether governments are meeting open data principles. Almost universally, the answer was no. More than anything, these scores were responsible for dragging down the grades since the first round of the project.
While open data principles are relatively new, the poor performance on these questions is indicative of the project’s findings as a whole. “If we really wanted to do it right we’d just scrap it all and start from scratch,” said Cuillier, of the University of Arizona, speaking of the broken state of open records and accessibility laws. That clearly is not going to happen, he said, so instead, “we’re going to continue to have laws that are archaic and tinkered with, and usually in the wrong direction.”
This article draws on reporting from State Integrity Investigation reporters in all 50 states.