February 10, 2016

When it comes to ethics, can citizen legislators draw bright lines in a gray area?

Dede Feldman at a book signing.

In the fall of 2005, the news of the indictment of former Treasurers Robert Vigil and Michael Montoya hit New Mexico legislators like a slap in the face. Stunned by the evidence, which came out daily on TV and in the newspapers, legislators scrambled to respond. A defiant Robert Vigil professed his innocence and refused to resign. A trial date was still in the future. Meanwhile, a cloud hung over state government and the discussion turned to bagmen and $10,000 payments handed over in parking lots. Employees of the treasurer’s office feared for their reputations and their jobs. So did legislators. Although Vigil was not one of our own, we grappled with our constitutional responsibility: impeachment.

Dede Felman

Dede Felman

The House of Representatives set up a special impeachment committee to review the evidence and begin the two-part proceedings. It was historic. The House would determine whether there was enough evidence to warrant a trial by the NM Senate. Fortunately, amid the deliberations, Vigil decided to resign. He was later tried, found guilty of attempted extortion, and sentenced to 26 months. Montoya, who turned state’s evidence, served 40 months in a Colorado prison. Governor Richardson appointed Doug Brown, a well-respected banker and later dean of the University of New Mexico’s business school, to serve as treasurer and clean up the mess. He also created an ethics task force composed of luminaries from the private and public sector to recommend remedies and restore confidence that this would not happen again.

Dede Feldman is a former state Senator and journalist. She is the author of “Inside the New Mexico Senate: Boots, Suits and Citizens,” a book about the State Legislature. This is an excerpt from that book.

Doug Brown was on the task force, which was chaired by former Governor Garrey Carruthers and UNM Law School Dean Suellyn Scarnecchia. So was former US Interior Secretary Stewart Udall, former LFC Director Maralyn Budke, lawyer Norman Thayer, accountant Leonard Sanchez, Matt Brix, of Common Cause, and Stuart Bluestone, from the AG’s office. Legislators and administration officials were there too.   I was on it, listening carefully to the proposals and wondering how in the world we would ever get any of this through the Senate.

After months of testimony and deliberation, the group recommended a wide-ranging package of legislation for the 2007 session. It included limits on campaign contributions, which I would sponsor and agonize over, a gift act sponsored by Sen. John Grubesic, of Santa Fe, and conflict-of-interest measures to strengthen the Governmental Conduct Act, sponsored by Rep. Joe Cervantes, of Las Cruces. It also included a new concept designed to address the fact that unsalaried legislators were using campaign funds for routine legislative expenses—contrary to state law.
The new idea was to amend the constitution so that legislators could be reimbursed up to $10,000 per year to cover legitimate constituent expenses (like surveys, or a secretary to handle constituent requests). In return the law restricting the use of campaign funds for anything but campaigns would be tightened. The concept, which was translated into two companion bills, never went far although I introduced it several years later in response to our continued, destructive dependence on lobbyists and campaign contributions.

By far the biggest idea from the task force was an independent ethics commission. New Mexico is one of only eight states that do not have an ethics commission with jurisdiction over state officials, employees, government contractors, and lobbyists. It does have a robust judicial standards commission and a legislative ethics committee, as we have seen, which rarely meets and has never taken action. But clearly, the public wanted more. A poll reported in the Albuquerque Journal that year indicated that 90 percent of respondents wanted an ethics board and limits on campaign contributions. Ninety percent is about as high as it gets in a poll.

Members of the task force proposed a bipartisan ten-member commission attached to (but not a part of) state government. The commission would have the power to investigate complaints and the ability to subpoena witnesses and documents. A whistleblower protection clause was included to protect employees and others bringing violations to light. The commission would also have an educational function, developing a code and conducting annual training sessions. It would, as former Gov. Garrey Carruthers said, “draw bright lines in a gray area.”

inside the new mexico senate boots, suits and citizensThe proposed commission was endorsed by the governor and highlighted in the press. But it was all but dead on arrival in the Senate, where it languished for over a month in the Senate Rules Committee and drew fire from Senate leaders.

The problem, once again, was not the message but the messenger, or, in this case the dispatcher: the governor. At the time, Richardson was in full campaign mode, just re-elected, and swinging into presidential politics with aggressive fundraising techniques and two new PACs open for business. Rumors of a scandal involving highway bonds and investment advisors who had connections to Richardson were beginning to surface.

Majority Leader Michael Sanchez in particular was incensed at the hypocrisy of it all. And the more popular that ethics reform became with the public and the House of Representatives (where it passed with only four opposing votes in 2007) the more he dug in. Sanchez argued the reforms were unnecessary in the legislature, which was being punished for the sins of one man (Robert Vigil) who was not even a member of the legislature. “What did the legislature do to warrant the push for the change?” he asked.

He was not alone. Republican Minority Leader Stuart Ingle said you couldn’t legislate ethics. “You either have ethics or you don’t.”

Sen. Leonard Rawson said, “Ethics legislation would only trap people who are trying to be honest, and the laws can be abused. Just because you have an ethics commission or ethics laws, doesn’t make someone ethical.” The argument that the legislature had done nothing to warrant change became harder to sell after the March 2007 indictment of the senate’s flamboyant pro tem, Manny Aragon. But that didn’t mean the opponents didn’t try. Even when the news of Aragon’s indictment broke during the March 2007 special session, the leadership avoided dealing with the topic of the ethics commission, shifting instead to debate on pubic financing of judicial races.

In the next five years, legislators would introduce forty-nine bills proposing an ethics commission. Many would pass the House unanimously, or with few negative votes. But the senate leadership was in no hurry. The latest commission bill in 2011, proposed a commission so weak that even advocates from Common Cause and the League of Women Voters backed away from it. Under the bill, a substitute engineered by Sen. Linda Lopez (SRC Sub for SB 164, 172, 293, 420), the commission would have limited subpoena power; complaints would not be taken during campaign season, nor made public. All meetings would be closed and no actions taken, with findings referred to the AG, the legislature, or other agencies. The only penalties prescribed in the bill would be for disclosure of confidential complaints by the press or members of the public.

Majority Leader Michael Sanchez continued his opposition, penning an opinion piece in 2009 that called out legislative supporters of ethics reforms as hypocrites who were all for ethics when the microphones and cameras were on, but themselves exhibited unethical behavior.

News coverage of the senate’s opposition to ethics reforms had started on a negative pitch back in 2007 with the Albuquerque Tribune, a liberal afternoon paper, calling the Senate “obstinate and ego driven . . . a bunch of clowns tripping over their own oversized feet.” 12 The Albuquerque Journal called upon the Senate to see the big picture. “It’s not about buckling under to pressure from the governor . . . it’s not about one bad actor in one elected position . . . or about targeting the New Mexico legislature,” the Journal opined. “It’s about setting up a system that limits influence peddling and targets officials who embrace the payoffs, the bagmen, the pay-to-play culture.”

For the Senate, over the next few years, the coverage would only get worse, and with Richardson under a growing ethical cloud, the issue would become a partisan one. In the 2010 Governor’s race, Republicans jumped on the Democrats as corrupt and opaque. Republican gubernatorial candidate Susana Martinez (who was endorsed by the Albuquerque Journal) embraced transparency and ethics, calling for tougher criminal penalties for politicians and the creation of a public corruption unit in the Department of Public Safety.  Martinez’s opponent, Lt. Gov. Diane Denish, who had championed the sunshine portal and investigations into the Region IV housing scandals, paid the price–losing the election.

As 2012 draws to a close, the Senate continues to hold out against an ethics commission with teeth. The hesitancy comes at a cost. Independent PACs like Reform New Mexico Now, which is affiliated with Governor Martinez, are still beating the drum against Bill Richardson and the unethical Democrats. Campaign literature sponsored by the group in one hotly contested house race in 2012 charged Democrat Andrew Barreras with ethical misdeeds, and harked back to “The Richardson Way.”

The facts seldom get in the way of a heated campaign. The fact that Richardson was never indicted for pay-to-play activities and was actually the promoter of an ethics commission was lost in a sea of negative perceptions. The Senate’s perennial resistance to an ethics commission, open conference committees, and even campaign contribution limits fueled the perception that legislators were above the law, and quite content with policing themselves, thank you.

No wonder the public distrust of “self serving” politicians has grown over the years. The American National Election Studies asks citizens about their trust in government biennially. The results indicate a steady decline in confidence from a confidence rate of more than 60 percent in the early 1960s to less than 30 percent by the year 2000.

In the first decade of the twenty-first century, it is still dropping as candidates themselves bash gridlocked politicians as crooks, and the media finds stories that confirm this narrative. But this death spiral is based on perception, and not necessarily fact. The examples of corruption I’ve documented here do not validate the assumption that all legislators are corrupt. Unfortunately, the defensive reaction of the NM Senate has made people think there’s something to hide. The blind spot that Senate leaders have when it comes to ethics has fed this perception. Perhaps the blind spot is a natural, defensive reaction to the pressures brought to bear on unpaid, unstaffed citizens doing the best they can, given the confusing gray areas in which they must operate. I find it puzzling. Why is a body that has risen above the partisan divide to cope with a recession, reduce secondhand smoke, ban the death penalty, legalize medical marijuana, end cockfighting and protect patients unwilling to address public perceptions of corruption?

The level of political corruption in New Mexico may not be worse than anywhere else in the U.S. In fact, it may be better. The online newspaper The Daily Beast carried a study by Clark Merefield and Lauren Streib about public corruption in the states from 1998 through 2008. It ranked New Mexico 45th lowest among 50 states and the District of Columbia. Likewise the New York Times ranked New Mexico 48th for the number of convicted officials from 1998-2007.16 But the perception persists that New Mexico state government is corrupt, and that is damaging and demoralizing for citizens and legislators alike.   Of course, legislators find it challenging to police themselves or draw bright lines in a gray area. But they are the only ones with the authority to enact statutory changes or, at the very least to take the issue seriously. Other states have stepped up to the plate, establishing independent ethics commissions, financing elections more fairly, tightening lobbyist restrictions and providing broader, more transparent access for citizens and taxpayers. Sometimes the reforms that states make do not help. Sometimes they are pre-empted by federal laws, or corruption arises in another area. But that is no excuse for doing nothing. Laws can be changed. Problems can be addressed. That is what legislatures are for.

This piece has been lightly edited from the original book form.