Secrets and Scandals: Reforming Rhode Island 1986-2006, Afterword

Monday, March 07, 2016

H. Phillip West Jr.

Between 1986 and 2006, Rhode Island ran a gauntlet of scandals that exposed corruption and aroused public rage. Protesters marched on the State House. Coalitions formed to fight for systemic changes. Under intense public pressure, lawmakers enacted historic laws and allowed voters to amend defects in the state’s constitution.

Since colonial times, the legislature had controlled state government. Governors were barred from making many executive appointments, and judges could never forget that on a single day in 1935 the General Assembly sacked the entire Supreme Court.

Without constitutional checks and balances, citizens suffered under single party control. Republicans ruled during the nineteenth and early twentieth centuries; Democrats held sway from the 1930s into the twenty-first century. In their eras of unchecked control, both parties became corrupt.

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H Philip West's SECRETS & SCANDALS tells the inside story of events that shook Rhode Island’s culture of corruption, gave birth to the nation’s strongest ethics commission, and finally brought separation of powers in 2004. No single leader, no political party, no organization could have converted betrayals of public trust into historic reforms. But when citizen coalitions worked with dedicated public officials to address systemic failures, government changed.

Three times—in 2002, 2008, and 2013—Chicago’s Better Government Association has scored state laws that promote integrity, accountability, and government transparency. In 50-state rankings, Rhode Island ranked second twice and first in 2013—largely because of reforms reported in SECRETS & SCANDALS.

Each week, GoLocalProv will be running a chapter from SECRETS & SCANDALS: Reforming Rhode Island, 1986-2006, which chronicles major government reforms that took place during H. Philip West's years as executive director of Common Cause of Rhode Island. The book is available from the local bookstores found HERE.

Afterword: Making Government Good (2006–2016)

History never pauses. During the years I have looked back to write this book, events have rushed forward. In this afterword, I want to sketch recent developments in ethics, election reform, open government, and separation of powers. How are the reforms enacted between 1986 and 2006 working? Have these efforts made any difference?

LEGISLATORS IN TROUBLE

In March 2014, as Secrets & Scandals went into galleys, federal agents with search warrants raided the home and State House office of Speaker Gordon D. Fox. Fox had previously paid two ethics fines — $10,000 in 2004 to settle for his conflicted vote for a GTECH contract, and $1,500 in 2014 for failing to report nearly $43,000 in fees from the Providence Economic Development Partnership. Only hours after the raid, Fox resigned as speaker.

After a year-long investigation, he pled guilty on federal charges of bribery, wire fraud, and filing false tax returns. While he served as vice chair on the Providence Board of Licenses, Fox had collected $52,500 in cash and checks to deliver a liquor license for a sushi restaurant called the Shark Bar. Investigators combing through his bank statements discovered $109,000 in illegal transfers from his campaign account to personal savings and law office accounts. The plea agreement cited his failure to report the bribes and campaign transfers as taxable income.

U.S. District Court Judge Mary M. Lisi sentenced the disgraced speaker to 36 months in prison. She ordered him to restore funds in his campaign account and pay delinquent taxes.

The federal proceedings did not clarify Fox’s apparent role in securing $75 million in state loan guarantees for Curt Shilling’s videogame company, 38 Studios, that failed shortly after its move to Rhode Island in 2011. During closed-door depositions aimed at recovery, Fox reportedly claimed his Fifth Amendment right against self-incrimination 958 times. Even in a state inured to scandal, his fall stunned and saddened many.

The greatest irony in this narrative may involve former Senate President William V. Irons, who often claimed to be a champion of ethics. Scandal over secret insurance commissions had engulfed Irons in 2003 and prompted his resignation in December of that year.

Leaders of Operation Clean Government filed an ethics complaint against him, charging that he had taken $70,000 in insurance commissions from CVS while using his power as a committee chair to kill pharmacy freedom of choice legislation that his clients, CVS and Blue Cross/Blue Shield, opposed. The Ethics Commission found probable cause that Irons had violated the law.

The next step would have been a full adjudicative hearing, but Irons and his lawyers sought a settlement, the civil equivalent of a guilty plea. Hidden from public view, Irons and his lawyer negotiated for three years with the Ethics Commission.

When negotiations failed, Irons’s attorneys filed two motions. The first sought to dismiss the charges on grounds that the state Constitution’s speech in debate clause made him immune to prosecution for legislative acts; the second demanded a jury trial rather than an adjudicative hearing before the Ethics Commission. The commission voted unanimously to deny both motions.

Irons appealed to Superior Court, where Judge Francis J. Darigan ruled in October 2008 that the “speech in debate” clause trumped the Ethics Amendment. Darigan blocked the prosecution.

The Rhode Island Supreme Court heard Irons’s case in May 2009. In June a three-justice majority affirmed Darigan’s ruling that speech in debate shielded the former Senate president. Chief Justice Frank J. Williams, joined by Justices Francis X. Flaherty and William P. Robinson III, traced legislators’ speech in debate immunity from the English Parliament in 1455 to the U.S. Constitution in 1787 and the Rhode Island Constitution of 1843. They emphasized that speech in debate immunity extended to “core legislative acts,” namely “proposing, passing, or voting upon” specific legislation. Their central premise was that state voters had reaffirmed the speech in debate clause on the same day in 1986 that they approved the Ethics Amendment. The three gave both clauses equal weight, and they nullified the Ethics Commission’s authority to prosecute members of the General Assembly for their “core legislative acts.”

Justice Paul A. Suttell dissented. He agreed that the speech in debate clause and Ethics Amendment were incompatible, but he urged “a different approach to this vexing constitutional dilemma.” Suttell quoted a recent precedent where the justices had written: “In construing provisions of the Rhode Island Constitution, our ‘chief purpose is to give effect to the intent of the framers.’” He then noted that delegates to the 1986 Constitutional Convention declared their determination to take “the fox away from the chickens,” a phrase that signified protecting the public against corrupt legislators. Suttell wrote that state voters had approved the framers’ “plain and unequivocal” language: “All elected and appointed officials . . . shall be subject to the code of ethics.”

Suttell stressed the seamless consensus from delegates at the 1986 Constitutional Convention to voters who approved the Ethics Amendment in 1986 and Supreme Court justices who affirmed the Ethics Commission’s authority in a unanimous 1992 opinion. His dissent ended cogently:

I would hold that in matters concerning the ethical conduct of legislators the ethics amendment creates a narrow exception to the immunity historically adhering to legislators in the performance of their legislative activities. Such a construction of our constitution, I believe, gives greater effect to the intent of the convention delegates and electorate in 1986 than an interpretation that places legislators beyond the reach of the ethics commission for violations of the code of ethics with respect to their performance of legislative activities. It would also preserve the full measure of protections accorded legislators by the speech in debate clause as to questioning from any person or entity except the ethics commission. (Suttell’s emphasis)

His emphasis on the will of the people is sound.

The majority wrote: “The electorate of this state reaffirmed the speech in debate clause” as part of “a neutral rewrite of the then-existing provisions of the Rhode Island Constitution.” They cited a handbook produced by the Constitutional Convention that said the neutral rewrite did not “change the intent of any section.”

That was literally true, but I believe they wrongly presumed that voters who approved a gender-neutral rewriting of the Rhode Island Constitution in 1986 were even remotely aware of the speech in debate clause. The three justices glossed over the fact that neither the handbook nor a booklet on statewide referendums published by Secretary of State Susan L. Farmer alluded anywhere to speech in debate. The Providence Journal published more than six hundred stories about the convention, ballot questions, and campaigns. Not one mentioned the speech in debate clause. Only a constitutional scholar who read through the entire text of the revised Constitution might have wondered whether a defense lawyer would someday use that clause to attack the Ethics Commission’s authority.

In contrast, the 1986 Ethics in Government question was widely discussed. It declared explicitly that “all elected and appointed officials” were to be subject to the Code of Ethics and jurisdiction of the Ethics Commission.

Justices Williams, Flaherty, and Robinson built their 2009 decision in Irons v. Rhode Island Ethics Commission on a false premise. They overturned a quarter-century of jurisprudence. They destroyed the Ethics Commission’s authority to advise legislators about conflicts of interest or investigate any complaint involving what the majority called legislators’ “core legislative acts.”

Common Cause then drafted and began promoting a constitutional amendment that would explicitly authorize the Ethics Commission “to investigate and adjudicate all alleged violations of the code of ethics, including acts otherwise protected by Article IV, Section 5,” the speech in debate clause. Sen. J. Michael Lenihan sponsored the resolution in the Senate, and then-House Majority Leader Gordon D. Fox introduced an identical version in his chamber on February 5, 2010, less than a week before he was elected speaker. The House passed Fox’s resolution and sent it to the Senate, where Senate President M. Teresa Paiva Weed, who had sponsored sound ethics legislation earlier in her political career, blocked consideration of both the Lenihan and Fox resolutions.

Six full legislative sessions have passed since the Supreme Court exempted senators and representatives from prosecution by the Ethics Commission. John Marion, who became director of Common Cause Rhode Island in 2008, contrasts the number of recusals — written announcements members make when not voting because of a conflict — from the four years before the Irons ruling to the four years after it. The number of recusals dropped 62.4 percent in the House of Representatives and 43.1 percent in the Senate. During the four legislative sessions after the Irons decision the count of representatives who bothered to recuse themselves even once dropped by half. Recusals in both chambers seem to have stopped in 2015 and 2016.

In June 2014, the Senate passed legislation that purported to address the speech in debate problem but was immediately denounced by Common Cause, Operation Clean Government, the League of Women Voters, and the Rhode Island Taxpayers Association as “hopelessly compromised.” Instead of a narrowly crafted amendment to address speech in debate issues involving legislators, the proposed constitutional amendment would open the door for any public official found to have violated ethics laws while serving on school committees, zoning boards, town councils, or quasi-public corporations to get a jury trial de novo rather than the current appeal to Superior Court. Similar legislation foundered in 2015, and progress seems unlikely in 2016.

At one 2010 hearing on the proposed amendment to restore the commission’s authority, Rep. Scott M. Pollard declared: “I’ve been here a year and a half now. There aren’t any corrupt people in the building. And if you do know them to be corrupt, then I suggest that you call the attorney general’s office and seek to have them prosecuted.”

Pollard had become a representative shortly after former House Majority Leader Gerard M. Martineau pled guilty on federal charges that he had sold his “honest services” to CVS and Blue Cross. Martineau — like Irons and Celona — had killed pharmacy freedom of choice bills over four legislative sessions. He admitted taking $911,435 from Blue Cross and invoicing the insurer for ten million printed bags but delivering only two million. In February 2008, he was fined $100,000 and sentenced to three years and one month in federal prison.

Other legislators went to jail for felonies unrelated to their roles as members of the General Assembly. In June 2010, Johnston Sen. Christopher B. Maselli was indicted for submitting fraudulent documents to get loans worth $1.525 million. Maselli pled guilty to eight felonies and was sentenced to two years and three months in prison. Former Rep. John J. McCauley Jr. and his business partner pled guilty in 2012 after their companies underreported their income by nearly $1.8 million and underpaid their taxes by about $500,000. Like Maselli, McCauley was sentenced to 27 months in federal prison.

Providence Rep. Leonidis Medina ran afoul of numerous authorities during the single term, 2011–12, that he served in the House. Charges against him included failure to file campaign finance reports, practicing law without a license, and felony misappropriation of a $28,035 life insurance settlement entrusted to him by an undocumented immigrant. Providence voters who gave Medina a 26-vote victory in the 2010 Democratic primary rejected him by a nearly two-to-one margin two years later. In June 2014, a jury found Medina guilty, and Superior Court Justice Netti C. Vogel sentenced him to three years in state prison and seventeen years suspended with probation. She ordered him to start paying restitution of $500 each month upon his release.

The fallout continues from scandals involving other current and former legislators. In 2005, the Ethics Commission fined former Sen. Patrick Timothy McDonald $4,000 for failing to file financial disclosure forms over several years. A state jury found McDonald guilty of conspiring to embezzle over $160,000 from his law clients. In May 2014, he was sentenced to twenty years in prison, with four-and-a-half to serve.

In 2007 Bristol Rep. Raymond Gallison was charged with failing to report income from the College Readiness Program on his financial disclosure forms, a total of $102,020 over three years. Legislative grants flowed from House leaders to the program and back to Gallison. Rather than contest the facts, Gallison paid a $6,000 settlement. Nevertheless, when Nicholas Mattiello became speaker, he picked Gallison to chair the powerful House Finance Committee, a post Gordon Fox had held for several years.

MUNICIPAL CORRUPTION LEADS TO A CODE OF ETHICS

Municipal corruption also made headlines. In 2009, North Providence Town Council Member Paul F. Caranci bravely wore a wire for the FBI to gather evidence against three fellow council members: Raymond L. Douglas III, John A. Zambarano, and Council President Joseph S. Burchfield, who was constituent services director for the state Senate. The trio eventually pled guilty to taking a $25,000 bribe from developer Richard P. Baccari Sr. for supermarket zoning.

Baccari was indicted and tried for bribery but found not guilty. Another jury convicted City Solicitor Robert S. Ciresi for delivering the bribe. Ciresi was sentenced to sixty-three months in federal prison. The three council members got sentences ranging from sixty-four to seventy-eight months, and several were tagged for additional crimes.

Nor were these major players alone in North Providence corruption: another former town council president, former zoning board chair, acting finance director, an unlicensed insurance adjuster, radio personality, and strip club manager all made headlines, pled guilty, paid fines, and received sentences.

Early in 2010, independent investigative reporter Jim Hummel broke the news that Central Falls Mayor Charles D. Moreau had steered lucrative no-bid contracts for boarding up abandoned buildings to his friend and campaign contributor Michael G. Bouthillette, who had a new furnace installed in Moreau’s house.

The City of Central Falls paid Bouthillette ten times the average for similar board-ups by contractors in neighboring cities. These costs became liens on at least 167 dilapidated structures, making it prohibitively expensive to sell or rehabilitate them. While Rhode Island’s smallest and poorest city had struggled with deficits before Moreau became mayor in 2004, his corrupt practices tipped it into receivership in 2010 and bankruptcy in May 2011.

Bouthillette’s furnace prompted an ethics complaint against Moreau for accepting a “gift” from “an interested person.” The mayor eventually acknowledged “knowingly and willfully” violating the $25 gift rule; he agreed to pay a fine of $7,000. Moreau also pled guilty on federal charges that carried a sentence of two years in prison and a $25,000 fine. Bouthillette pled to a single felony. He got three years of probation, a $5,000 fine, and an obligation to work two thousand hours for the city he had defrauded. He was also required to establish a $160,000 endowment at the Rhode Island Foundation to help provide housing for the poor in Central Falls.

The scandal marked a new beginning for the tiny city. James A. Diossa, the son of Colombian immigrant parents, had returned after college and challenged the corrupt Moreau machine. In 2009, while the city spiraled into state receivership and then bankruptcy, Diossa won a seat on the Central Falls City Council but found himself locked out of meetings. When Moreau pleaded guilty, Diossa ran for mayor, promising an ethics ordinance that would make the corrupt practices of recent years illegal. He won and was inaugurated on the high school stage where he had graduated ten years earlier.

Diossa quickly proposed an ordinance adapted from the Providence Code of Ethics, and the state-appointed receiver John F. McJennett III, acting in place of the council, approved it. One section allowed the city to revoke the pension of any official or employee who commits a felony in office. That provision proved necessary when Joyce Tager, a city collections officer, was arrested for embezzling from the cash-strapped city. Tager resigned, pled guilty, paid full restitution of $17,000, and agreed to have her pension revoked.

Pensioners suffered grievous losses in the city’s bankruptcy, but the receivership cleared a road to recovery, and a new generation of Central Falls leaders began the journey. In 2013, Diossa won a full term, and a new city council was elected with a female majority of citizen reformers. During Diossa’s first full fiscal year, Central Falls built up an operating surplus of $1.3 million. Although the struggle was far from over, Central Falls had new leadership and was bouncing back.

In 2014, Vincent A. “Buddy” Cianci campaigned to return for a third time as mayor of Providence. Public corruption had permeated his two previous regimes — 1975-1984 and 1991-2002 — and felonies he committed had ended both, but he declared himself ready to serve as mayor a third time. With neither his toupee nor apparent remorse for his crimes, he ran as an independent to cut between Republican Daniel S. Harrop III, a psychiatrist, and Democrat Jorge O. Elorza, a Housing Court Judge and professor at Roger Williams School of Law.

Twice before, Cianci had slipped into office by narrow margins in three-way races. But only hours before the crucial election, Harrop announced that he would vote for Elorza. “The prospect of a third corrupt Cianci administration,” he declared, “has convinced me that the citizens of Providence should not split their votes among three candidates.” Harrop warned against Cianci’s return: “Corruption is inimical to growth and hostile to job creation, and we cannot let City Hall again become a center for criminal activity in the city.” By contrast, the GOP candidate said, “I have come to see Judge Elorza as an honest and just man, concerned about the welfare of our city and our citizens. While we have many policy differences, I do not fear that an Elorza mayoral administration will make Providence the laughing stock of the nation.”

Elorza beat the former mayor by 7.1 percent of the votes cast, and Cianci went back to talk radio at WPRO-AM. On January 27, 2016, two years after he was diagnosed with colon cancer and fourteen months after his first electoral defeat, Cianci was stricken while taping a television program. He died the next day.

Rhode Island’s Historian Laureate Patrick T. Conley, who had served as chief of staff early in Cianci’s first administration suggested that Cianci would “rank among the most dynamic, interesting, and controversial city mayors in all of American history.” Conley added that Cianci might be called “the quintessential rogue of Rogues’ Island.”

U.S. SUPREME COURT MAJORITY RAVAGES REFORMS

During the years since I retired from Common Cause, the U.S. Supreme Court has ravaged reforms begun more than a century ago under President Theodore Roosevelt. Roosevelt pushed for the Tillman Act of 1907 that banned corporate contributions in federal campaigns. Later laws — some born of famous scandals — limited campaign contributions, required the disclosure of contributions, and regulated the use of campaign funds.

During the 1972 campaign to re-elect President Richard M. Nixon, investigative reporters exposed massive campaign finance abuses. Watergate wrenched the nation, forced Nixon’s resignation, and prompted passage of the Federal Election Campaign Act Amendments of 1974. That legislation tightened limits on contributions to campaigns for federal offices and required full disclosure of campaign contributions. It also provided public funds for presidential campaigns and established the Federal Elections Commission to enforce campaign finance laws. Rhode Island and many other states adapted these approaches for use in state elections.

In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA), often called McCain-Feingold for its Senate sponsors. BCRA raised the limits on contributions to candidates and political party committees. It also banned the use of “soft money,” funds raised and spent outside campaign finance laws to influence federal elections. McCain-Feingold also restricted so-called “issue ads” that were funded by corporations or unions to influence federal elections. The bipartisan law also required candidates to appear in each ad and approve its content.

For nearly a century, U.S. Supreme Court decisions upheld the ban on corporate contributions, limits on individual contributions, and disclosure requirements as constitutional mechanisms for discouraging corruption. In 2003, the high court upheld McCain-Feingold in McConnell v. Federal Election Commission.

Then came seismic change. During Supreme Court confirmation hearings, both John G. Roberts Jr. and Samuel A. Alito Jr. promised stare decisis — that they would stand by legal precedents. Yet once Roberts became chief justice in 2005 and Alito took his seat as an associate justice in 2006, they joined with Justices Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy to dismantle long-established campaign finance reforms.

In seven years, these five justices obliterated nearly a century of precedents. Among their targets were a section of law that prohibited sham issue ads (2007), a “Millionaires’ Amendment” that allowed candidates facing wealthy self-funded opponents to raise additional private contributions (2008), long-standing restrictions on union and corporate spending in candidate elections (2010 and 2012), state programs that provide matching public funds to candidates who abide by expenditure limits (2011), and limits on the total amounts contributors can give in federal elections to all candidates (2014). The Roberts majority seemed not to recognize any corruption short of quid pro quo bribery for specific government actions. They shut their eyes to the obligations that million-dollar contributions hang around the necks of elected officials. Taken together, these precedent-shattering decisions opened American elections to massive influence peddling.

Congress reinforced the U.S. Supreme Court’s precedent-shattering lurch to the right. Though the conservative majority had signaled that Congress could mandate disclosure without suppressing speech, Congress has refused to pass any laws for campaign finance transparency. In July 2010, U.S. Senate Republicans used a filibuster to bury legislation that would have forced disclosure by groups or corporations that fund independent ads. The bill would have banned contributions from foreign-controlled corporations, government contractors, and firms that received federal TARP (Troubled Asset Relief Program) bailout funds.

Although the Rhode Island General Assembly could not restore contribution curbs shattered by the Roberts Court, it did enact significant disclosure requirements in 2012. Rep. Christopher R. Blazejewski in the House and Sen. Juan M. Pichardo in the Senate cited the Citizens United v. FEC decision as cause for alarm. Their legislation defined “independent expenditures” that seek to influence candidate elections or ballot questions. Among tightly woven strictures, the new law required disclosure by the donor or chief officer of the group that pays for a campaign commercial and a list of the top five donors to the organization paying for the ad.

In another hopeful Rhode Island sign, three candidates running for governor in 2014 — Gina Raimondo, Angel Taveras, and Clay Pell — joined in a Peoples’ Pledge on April 28, 2014. The signing followed conversations hosted by John Marion at Common Cause. The agreement created incentives for candidates to discourage independent spending by outside groups, whether Super PACs, 527 groups, or various 501(c) organizations. The candidates pledged not to allow any coordination with such groups. Raimondo and Taveras quickly sent email blasts to let people know they had signed. A Common Cause press release called solutions like the People’s Pledge “our best hope of restoring elections that are about candidates speaking to voters and not being drowned out by outside special interests.”

The Roberts-Alito-Scalia-Kennedy-Thomas Supreme Court majority also pounded minority voters. Its June 2013 ruling in Shelby County v. Holder struck down a key protection from the Voting Rights Act of 1965. For half a century, states with histories of racial discrimination had been required to clear changes in their election procedures before implementing them. The five activist judges swept away that reform.

In a fierce dissent, Justice Ruth Bader Ginsburg noted that, although the preclearance process had dismantled traditional obstacles to black voting, jurisdictions were already enacting many “second-generation barriers” to circumvent the law. As if to prove Ginsburg’s point, within months of Shelby County v. Holder, Republican legislatures in nine states passed laws that made voting more difficult or less available for minorities.

In 2006, after passage of Rhode Island’s Right to Vote Amendment, staff members at the Adult Corrections Institution began notifying inmates that they could register to vote upon their release. Program records show that of 3,196 ex-felons released by 2013, 44.8 per cent actually registered, 12.9 per cent took forms to complete later, and 42 percent refused. During a voter registration drive conducted by the Family Life Center — renamed Open Doors Rhode Island — 6,330 former prisoners registered in time to vote in the 2008 election.

For any who doubt the wisdom of restoring the franchise upon release, rather than at the end of probation and parole, Koren Carbuccia posed a vital question: “Isn’t the point of the criminal justice system to return responsible, law-abiding citizens back into their communities?”

On February 13, 2016, U.S. Supreme Court Justice Antonin Scalia died at a West Texas ranch. Even before his body was moved, Senate Majority Leader Mitch McConnell declared that his caucus would not hold hearings on anyone President Barak Obama might nominate to fill the vacancy. Arcane constitutional questions became white-hot partisan weapons in presidential primaries.

Many ordinary Americans recognized the profound influence a single Supreme Court justice might have on their lives. Corporations also grasped a new reality without Scalia. After losing in a lower court, Dow Chemical had an appeal before the Supreme Court. At the end of February, rather than risk a 4-4 split that would leave it responsible for a $1.06 billion award, Dow settled quietly for $835 million.

SEPARATION OF POWERS PROMPTS OVERSIGHT

While I was writing this book the Rhode Island Department of Transportation completed a new interchange between I-95 and I-195 in Providence. Between November 2007 and October 2011, DOT opened graceful ramps that let traffic flow smoothly across the iconic Iway bridge onto I-95 north and south or to the cluster of hospitals beyond the highway. This new infrastructure ended drivers’ desperate dashes across lanes of traffic to reach exits. The new order is unquestionably faster, smoother, and safer.

Separation of powers — although less visible than a relocated highway interchange — is transforming Rhode Island government. Pressures that invited risky behavior when legislators served on executive boards have diminished, along with chances for corrupt insider deals. Routine decisions have become more orderly. The insight of our nation’s founders about separating legislative, executive, and judicial functions is clearly affecting political decisions in positive ways.

Contrary to what I believed when I retired, House leaders had not sent their 2006 request for an advisory opinion on the Coastal Resources Management Council (CRMC) to the Rhode Island Supreme Court, but they did so in 2007. Four justices heard oral arguments in October 2008 and issued a unanimous advisory opinion in December. The justices concluded that two new sections of the Rhode Island Constitution — the ban on state senators or representatives sitting on boards that executed state law and the clause empowering the governor to appoint all members of those boards — were effective without further enabling legislation. Each was “self-executing.”

The justices declared the CRMC’s powers “manifestly executive in nature,” adding that to call these functions “legislative” would require willful blindness to the separation of powers clause, “which expressly requires the three departments of government to be ‘separate and distinct.’” Their unanimous advisory emphasized that separation of powers did not diminish the General Assembly’s “constitutional duty to protect the natural environment of the state through the vigorous and proactive exercise of its legislative powers.”

From the start of the drive for separation of powers, advocates had aimed to provide effective legislative oversight for executive departments, boards, and commissions. As far back as 2000, the Senate Select Commission on Quasi-Public Agencies led by J. Michael Lenihan and M. Teresa Paiva Weed had conducted rigorous oversight hearings. In 2003, the Senate established a standing Committee on Government Oversight with Lenihan as chairperson. Over several years, he refined oversight practices as alternatives to the old model that presumed lawmakers on boards were somehow “providing oversight.”

Sen. James C. Sheehan, who now chairs the Senate Government Oversight Committee, says that before separation of powers, legislators sometimes developed cozy relationships with the boards on which they served. Some may have feared that “problems or wrongdoing could reflect on them if brought to light.” Sheehan plans “regular performance audits of quasi-public agencies.” He notes that Senate rules now permit other standing committees to conduct oversight over parts of the executive branch “within the committee’s purview.”

In the House, too, old claims that legislators on boards and commissions provided oversight became passé. Early in 2009, only two months after the Supreme Court disqualified state legislators and legislative appointees from serving on the CRMC, the House renamed its Committee on Separation of Powers, adding “and Oversight” to reflect its additional duties. In 2011, new House rules rebranded the committee again as simply “House Oversight.” In both chambers, oversight committees now follow the playbook of Sen. Mike Lenihan’s 2000 hearings on quasi-publics. The House Oversight Committee meets in a room refurbished for digital video.

These changes are not merely matters of nomenclature or style. After years of resistance to separation of powers, legislative practices shifted decisively toward a congressional model in which lawmakers question executive decision-makers in public sessions.

In May 2014, after barely a month at the helm of the House Oversight Committee, Chairperson Karen L. MacBeth, sought to investigate the ill-fated $75-million loan guarantee for 38 Studios. MacBeth demanded a forensic audit of the defunct gaming company, including building permits and contractors’ bills. She later won the support of Speaker Nicholas A. Mattiello to subpoena witnesses.

But the committee’s investigative authority came late. Lawyers involved in state lawsuits to recover funds had already deposed scores of witnesses behind closed doors, and some defendants had settled state claims against them with attorney Max Wistow. Meanwhile, a nine-member State Police team had combed mountains of evidence for possible criminal prosecutions, and Superior Court Judge Michael A. Silverstein had ordered thousands of documents into public view. By January 2016, when former House Finance Committee Chair Steven Costantino finally testified before MacBeth’s panel, his claims of ignorance about 38 Studios left many rolling their eyes.

MOVING TOWARD PENSION REFORM

Together, the 2004 Separation of Powers Amendment and the 1992 Four-Year Terms Amendment gave Gov. Lincoln D. Chafee and General Treasurer Gina M. Raimondo a firm foothold for a crucial fight.

In 2010, Raimondo ran for general treasurer on a promise of pension reform. For decades Rhode Island’s pension fund had been underfunded and subject to insider abuse. Invested funds had taken a hit in the deepest crash since the Great Depression. Retirees were living longer and collecting compounded annual cost-of-living increases. Estimates of the unfunded liability ranged from $7 billion to $13.7 billion. Raimondo pledged to make the system reliable for retirees and affordable for taxpayers.

Raimondo’s warnings resonated with voters, who gave her the largest majority in any of the five statewide races, a genuine mandate for reform. Early in her tenure, Raimondo issued a report entitled TRUTH IN NUMBERS: The Security and Sustainability of Rhode Island’s Retirement System. Her data showed dire consequences for state employees and teachers, threats to vital public services, unsustainable taxes, and the inevitability of pension default. She warned that inaction would bring devastating consequences. “This will not go away,” she said. “It will get harder to fix every day that we ignore it.”

She persuaded Gov. Chafee and legislative leaders — House Speaker Gordon Fox and Senate President Teresa Paiva Weed — to tackle pension reform in a special session of the General Assembly. Raimondo said her legislation would provide retirement security for employees, reduce the state’s unfunded liability by $3 billion, save taxpayers $4 billion and municipalities another $1 billion over twenty years. During October and November of 2011, legislators approved her 113-page package, which Chafee signed into law on November 18. The new law protected existing benefit levels but reduced some future pay-outs. It temporarily suspended retirees’ annual cost-of-living allowances (COLAs), raised minimum retirement ages, and launched a new 401(k)-style defined contribution retirement plan for current employees.

Bond rating agencies praised the new law. Fitch declared: “The reform is unusually expansive. Specifically, it changes the benefits available to currently vested employees as well as current retirees going forward. The sweeping nature of the reform may inspire similar efforts in other states grappling with large unfunded pension obligations.”

Time magazine featured Raimondo in a story titled “The Little State That Could.” It declared that this was not a “fix” like previous pension reforms “with nods, winks, phony accounting and fingers crossed. But fix as in repair, cure, or mend.” Time said the new law showed “that difficult, self-sacrificing decisions are still possible . . . . Change hurts, but it can be done. Ask Raimondo.”

Public employee unions, which had sometimes defended perpetrators of past pension abuses, were less sanguine. J. Michael Downey, president of AFSCME Council 94, complained: “Our elected officials have unwisely chosen to steal the retirement security of Rhode Island’s public employees.” Philip M. Keefe, president of the State Employees International Union Local 580, said his members were bitterly disappointed that they had been “targeted again, again, and again.” He warned: “This injustice leveled against the hard-working members of Council 94 and all public employees in our state will not be forgiven or forgotten.”

When public employee unions sued the state, Superior Court Judge Sarah Taft-Carter ordered the parties into confidential negotiations. A year of tightly guarded talks produced a tentative settlement that went to a vote of active members and retirees. While six union groups approved the deal, three police unions representing 733 employees, rejected it. After further negotiations, Taft-Carter announced a tentative settlement in April 2015. She ruled that the agreement might not be “perfect,” but was plainly what the law required: “fair, reasonable and adequate.”

Legislators ratified the slightly revised pension settlement as part of the annual state budget. The resolution reportedly will save taxpayers $4 billion.

Raimondo says separation of powers helped in launching pension reform. She notes that despite actuarial warnings as early as 1974 the boards responsible had made things worse. “Prior to 2004 and the Separation of Powers Amendment,” she writes, “key decisions were made by various government boards and commissions against the advice of actuarial experts. Each time these actuarial techniques caused a reduction in taxpayer and employer contributions to the pension plan and increased its unfunded liability.”

In 2006, during his last year in office, General Treasurer Paul J. Tavares helped reconfigure five financial boards to comply with the Separation of Powers Amendment. All were moved into the office of the general treasurer. Five years later, the Retirement Board and the State Investment Commission played crucial roles in effectively shaping overdue pension reforms. “Separation of powers,” Raimondo says, “allowed the executive and legislative branches of government to work as contemplated by our founding fathers toward a common solution that made the retirement system stronger for public employees, retirees and taxpayers.”

TRANSPARENCY MATTERS

Citizens need clear signage to navigate the new infrastructure set up under separation of powers. Transparency requires public access to government meetings, documents, regulations, and laws. In 2012, the General Assembly enacted historic amendments to the state’s Access to Public Records Law. Atty. Gen. Peter Kilmartin supported legislation that speeds the release of government records, including detailed arrest logs. New sections improved the process for educating public officials and doubled penalties for public officials who violate the law.

The new law also contained a “balancing test” that open government advocates had sought since 1997. Under the state’s Watergate-era Access to Public Records Law, most documents that were “identifiable to an individual” could not be disclosed. The new law followed the federal Freedom of Information Act in “balancing” the public’s right to know against a “clearly unwarranted invasion of personal privacy.” Backers included the ACLU, the League of Women Voters, the Rhode Island Press Association, the New England First Amendment Coalition, and Common Cause, whose executive director John Marion called the balancing test “a huge leap forward.”

Lobbyist reporting also improved significantly in recent years. Secretary of State A. Ralph Mollis published an online annual report that ran nearly three thousand pages and contained printouts from lobbyist reports filed during the previous year. Mollis’s compilation also held the annual reports of lobbying firms that pay “anything of value” over $250 to state decision-makers. The Providence Journal reports these payments each January.

Another improvement sprang from the 38 Studios scandal. Attorney Michael Corso, an associate of disgraced House Speaker Gordon Fox, had promoted the company’s $75 million loan guarantee without registering or reporting as a lobbyist. During his final months in office, the outgoing secretary of state tried unsuccessfully to prosecute Corso. Mollis’s successor, Nellie M. Gorbea, sought to update the law by clarifying definitions, simplifying procedures, and strengthening her office’s authority to pursue violators. Although her legislation died in 2015, it appears on track for passage in 2016.

While lobbyists still find ways to ingratiate themselves with decision-makers, more stringent reporting and the Ethics Commission’s renewed gift rule may have curbed influence-peddling. Lobbyist Robert Goldberg quipped to a reporter: “The public perception or the myth is that we’re always all out drinking every night. I wish it were true. In my dreams,” he said. “They’ve changed the rules such that the socializing is all but over. If anybody’s buying a round of drinks, it’s the legislators. We can’t.”

GOVERNORS, LEGISLATORS, AND JUDGES UNDERCUT MERIT SELECTION

Voters approved the 1994 Judicial Selection Amendment — merit selection of all Rhode Island judges — by a margin of 211,394 to 91,294, just under seventy per cent. But from the beginning, governors and legislative leaders sought to disable the new process. In a fuller analysis than I can provide here, John Marion explained how the political branches have undermined the merit selection “both by neglect and deliberate attempts to circumvent the system.”

Tracy Breton, a member of the Providence Journal team that won a Pulitzer Prize for the 1993 series “The Making of an Empire,” recently confirmed that view. “I don’t see that there’s really any less political influence that goes into selecting the judges,” she told Rhode Island Public Radio reporter Ian Donnis. “So while there’s this merit selection thing and the public is allowed to come in and ask questions and see this in this very sort of transparent way, I don’t think the system has changed at all.”

One serious problem: governors and legislative leaders have routinely named lobbyists and confidants to the Judicial Nominating Commission. Gov. Bruce Sundlun appointed top-earning State House lobbyist Peter J. McGinn in 1994. Other lobbyists with large stakes in legislative outcomes followed: former Sen. David P. Kerins, Richard M. McAuliffe Jr., and D. Faye Sanders. Speaker John Harwood put his neighbor Sharon Burgess on the panel in 1994, and she served nearly four years beyond her four-year term limit. Speaker William J. Murphy named his law partner, Norman L. Landroche Jr., and Gov. Donald Carcieri appointed his former chief of staff, Jeffrey Grybowski. While these appointments were legal, they created an unmistakable impression of insider influence.

Lobbyist Rick McAuliffe assured me that although he makes a substantial income from lobbying, he had never been contacted by anyone in the General Assembly regarding any candidate for judicial nomination.

A key element of merit selection required the governor to appoint each judicial nominee within twenty-one days of receiving the list. That time limit aimed to prevent governors from waiting until the end of a legislative session when judgeships became high-value chits to trade with legislative leaders. Gov. Lincoln Almond occasionally missed his deadlines, but Providence Journal judicial reporter Katie Mulvaney noted that Gov. Donald Carcieri “was notoriously late in nominating judges, sometimes leaving openings lingering for a year.” Roger Williams Law School Dean Michael Yelnosky, a close observer of the process through fifteen years since he chaired the Common Cause judicial reform committee, added: “This is not an ambiguous statute. The more unfilled positions he has, the more deals the governor can cut.”

The model developed by the American Judicature Society was widely discussed during passage of the bill and constitutional amendment in 1994. The law required that the Judicial Nominating Commission present to the governor “not less than three and not more than five highly qualified persons for each vacancy.” Governors Almond and Carcieri understood this “short list” as essential to the merit selection model, but both chafed under it.

In 2007, Carcieri proposed legislation that would let a governor consider all nominees for vacancies on the same court during the previous three years. Legislators of both parties rushed to oblige him and raised the three-year “lookback window” to five years. Democrats and Republicans together demolished the cornerstone of judicial merit selection: short lists of three to five “highly qualified” nominees for each judicial vacancy. By multiplying the number of candidates, Carcieri and legislative leaders restored the kinds of backstage candidate swapping that had been routine before the Supreme Court patronage scandal of 1993. The change became law in 2007 and has been reenacted each year since then.

This multi-pronged attack on merit selection also sabotaged prohibitions against revolving door jobs. The bans, imposed by the Ethics Commission in 1991 and the General Assembly in 1992, were upheld unanimously by the Supreme Court in 1993. With the revolving door locked, legislative leaders could no longer move their favored supporters, attorneys, and family members directly into judgeships. So the General Assembly began creating “magistrates,” who wore judicial robes, exercised judicial powers, and took home judicial salaries. But magistrates were appointed by the chief judges of the various courts and were not vetted by the Judicial Nominating Commission. In 1994, when voters approved merit selection for all state judges, there were five “masters” in the entire judicial branch. Renamed “magistrates,” their number swelled to twenty-one by 2012.

Although hard to prove, it appears that trading magistrates for judicial budget items has become commonplace. Among the newly minted magistrates were: Patricia Lynch Harwood, named while her husband, John B. Harwood, was speaker of the House; Mary E. McCaffrey, chosen as magistrate and later elevated to a District Court judgeship while her brother chaired the Senate Judiciary Committee; Christine S. Jabour, named while her husband chaired the Judicial Nominating Commission, Colleen M. Hastings, assistant legal counsel to Sen. Majority Leader M. Teresa Paiva Weed; William R. Guglietta, chief legal counsel to House Majority Leader Gordon D. Fox and John J. Flynn, legal counsel to Fox; Patrick T. Burke, deputy assistant to Speaker William J. Murphy; former Senators R. David Cruise, John F. McBurney III, and Charles J. Levesque. Former Senate President Joseph A. Montalbano also became a magistrate and then a Superior Court judge. Once safely parked in ten-year magistrate terms, insiders could wait out the Revolving Door Law, establish judicial résumés, and apply for permanent judgeships.

Christine Lopes, who followed me as director of Common Cause Rhode Island, criticized the appointment of William Guglietta as chief magistrate of the Traffic Tribunal — with authority to appoint other magistrates — saying it perpetuated “a perception by the public that things are fixed.” John Marion, who succeeded Lopes in 2008, compares the process to a “secret bazaar” where leaders barter behind closed doors over the budget, magistrates, judges, and other delights.

Keven A. McKenna, who chaired the 1986 Constitutional Convention, frequently blasts what he calls “unholy alliances between the judicial branch and the General Assembly” that violate separation of powers. “The power of appointing judges belongs only to the president or the governor,” McKenna writes. “Both the state and federal constitutions prohibit the judiciary and the legislature from making appointments to executive branch offices or to appoint judges.”

In 2001 and 2002, Charlestown Sen. Donna M. Walsh proposed legislation that would have required all magistrates to “be appointed in the same manner” as judges were appointed: through the Judicial Nominating Commission. In 2002, Walsh found herself gerrymandered out of her Senate seat. In 2006, she ran for a House seat and won. She again began promoting an open process for public scrutiny and comment before the appointment of magistrates. Year after year, Walsh’s bills were buried in committee but served as a reminder that people of conscience were troubled by the continuing use of magistrate positions as rewards for loyal service. In 2014, Walsh also introduced a related bill that would require members of the Judicial Nominating Commission to be insulated from politics and lobbying, as members of the Ethics Commission are. Both bills were “held for further study” by the House Judiciary Committee.

REDISTRICTING REQUIRES A NEW MODEL

Of all the struggles citizens waged to make Rhode Island’s government open and accountable to the people, redistricting delivered the least tangible results. Through four successive rounds of redistricting in 1982, 1992, 2002, and 2012, reformers advocated an independent process that would serve communities rather than incumbent legislators. Neither constitutional amendments nor genuine reforms were enacted, and legislative abuses carried the day. New computer technology made it exponentially easier each decade for legislative leaders to draw districts that protect their allies and oust their enemies.

Federal lawsuits filed in 2002 ended in a negotiated settlement and the redrawing of Senate districts around Providence. But five East Bay towns that sued in Superior Court over blatant factional gerrymandering were rebuffed. Ironically, Sen. President William Irons prevailed in Superior Court only weeks before scandal engulfed him. The Rhode Island Supreme Court later upheld gerrymanders that shaped the East Bay district maps for a generation after Irons left the Senate in disgrace.

Partisan gerrymandering has become the rule rather than the exception in many states. Before state elections in 2010, the Republican State Leadership Committee — a 527 group that took corporate money from the U.S. Chamber of Commerce, American Crossroads, Blue Cross/Blue Shield, AstraZenica, Verizon, AT&T, Wal-Mart, and other familiar brands — invested $30 million in state legislative races “to erect a Republican firewall through the redistricting process.” The venture paid off with new GOP majorities in seven key state legislatures.

In 2012, those Republican majorities gerrymandered both state legislative and Congressional districts. Their maps produced wildly disproportionate partisan gains. Analyst Sam Wang noted that in those seven states where new Republican majorities redrew congressional districts, the GOP won 16.7 million votes to the Democrats’ 16.4 million. But because Republicans had packed supermajorities of Democrats into a small number of districts, the gerrymandered districts sent more than twice as many Republicans to Congress: 73 to 34. In congressional races nationwide, Democrats won 1.4 million votes more than their Republican opponents, but partisan gerrymandering allowed the GOP to control the U.S. House of Representatives by a margin of 234 to 201. Wang notes that this is only the second such reversal since World War II.

These gerrymanders spawned partisan gridlock in Congress and a widespread loss of faith that Washington can address critical issues. That cynical and systematic map-making may shape American politics until the next round of redistricting in 2022.

In 2008, Common Cause California sponsored the successful Proposition 11, which established an independent Citizens Redistricting Commission. Voters submit their résumés, which state auditors screen for skills, impartiality, and diversity. Random selections produce a pool of sixty potential commissioners. Auditors then randomly pick a balanced panel of Democrats, Republicans, and Independents.

The fourteen-member panel is required by law to follow eight criteria in ranked order when they redraw districts. Of paramount importance, mapmakers must remain “incumbent-blind,” meaning to take no notice of where officeholders or candidates live.

California voters quickly recognized the value of this approach. In 2010, 61.3 percent approved Proposition 20, which expanded the commission’s remapping authority from state legislative maps to Congressional districts. The California model offers an obvious improvement after Rhode Island’s history of gerrymandering for factional or partisan advantage. Past experience suggests that nothing short of a new constitutional convention will be able to place such an amendment on the ballot.

MAKING GOVERNMENT GOOD

In 1988, when I failed as a copy editor at the Providence Journal, the newspaper routinely sent teams of investigative reporters to dig into public contracts, departmental budgets, and campaign contribution reports. The paper won its fourth Pulitzer Prize for its 1993 exposé of patronage at the Rhode Island Supreme Court. With the backing of publisher Steven Hamblett, the Journal revealed secrets that aroused public rage and sparked reform.

But the Journal’s 1996 sale to the Texas-based Belo Corporation coincided with a relentless rise in Internet competition for classified and display advertising — a digital force that hollowed out newspapers everywhere. Financial pressure forced the closing of regional bureaus and ended coverage of many events. Belo laid off or bought out many veteran journalists and sold the truncated company to GateHouse Media for $46 million in 2014. The Journal’s Sunday circulation plummeted from a peak of 262,000 to 89,452 at in October 2015.

A colonial publisher understood the integral connection between public information and vigilant citizenship. Benjamin Franklin was eighty-one when he and other delegates at the Constitutional Convention of 1787 drafted the U.S. Constitution. One delegate told how, as he and Franklin left Independence Hall, a woman asked: “Well, Doctor, what have we got — a republic or a monarchy?”

“A republic,” Franklin answered, “if you can keep it.”

From Franklin’s printing press to the Internet that speeds complex data to smart phones and tablets, our challenge remains essentially the same. How can we protect and defend a government that empowers us to govern ourselves? How can we make government good for us all, not just the privileged few?

I hope this narrative from Rhode Island’s latest “era of reform” demystifies the workings of government for ordinary people who sometimes feel so disgusted that they leave politics to the mercenaries. People who care about public policy and civic order must join forces in a dedicated effort to make government good. This is a doable and worthy goal, but it requires constant vigilance and perseverance — like maintaining the homes and infrastructures that make our lives secure.

One day a group met at the governor’s office in a little inner room with no gold letters on the door, only plain frosted glass. Gov. Don Carcieri, two of his top lawyers, and a couple of us from Common Cause huddled around a small table.

Suddenly, from the hallway, came strumming on a twelve-string guitar. Gentle voices began to sing, “This land is your land, this land is my land. . . .” They sang Woody Guthrie’s Depression-era tune with new verses about our state budget. From inside, we could hear every word. I had trouble concentrating, and I knew others did, too.

Like ocean waves, the singing surged and subsided until our meeting ended. We left through the governor’s formal office, through the receptionist’s office, and through the magnificent State Room. Once in the marble hallway, I circled back toward the singers.

Outside the governor’s unmarked door were Nancy Gewirtz, who had founded the Poverty Institute at Rhode Island College, and Rick Harris, who led the state chapter of the National Association of Social Workers. With them were families who would be harmed by severe cuts in the state budget. Nancy Gewirtz’s face was gaunt as she neared the end of a long struggle with cancer, but she sang her heart out. Together, they gave voice to thousands who have no high-paid lobbyists.

“We were with the governor right inside that door,” I said softly. “It may feel like nobody’s listening. But I want you to know we could hear every word.”

Our republic needs constant repair to keep government from morphing into a gilded court. We all need to make ourselves at home in the People’s House, to understand its workings and learn its ways. Singing together will sustain our hope far better than grumbling alone.

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H. Philip West Jr. served from 1988 to 2006 as executive director of Common Cause Rhode Island. SECRETS & SCANDALS: Reforming Rhode Island, 1986-2006, chronicles major government reforms during those years.

He helped organize coalitions that led in passage of dozens of ethics and open government laws and five major amendments to the Rhode Island Constitution, including the 2004 Separation of Powers Amendment.

West hosted many delegations from the U.S. State Department’s International Visitor Leadership Program that came to learn about ethics and separation of powers. In 2000, he addressed a conference on government ethics laws in Tver, Russia. After retiring from Common Cause, he taught Ethics in Public Administration to graduate students at the University of Rhode Island.

Previously, West served as pastor of United Methodist churches and ran a settlement house on the Bowery in New York City. He helped with the delivery of medicines to victims of the South African-sponsored civil war in Mozambique and later assisted people displaced by Liberia’s civil war. He has been involved in developing affordable housing, day care centers, and other community services in New York, Connecticut, and Rhode Island.

West graduated, Phi Beta Kappa, from Hamilton College in Clinton, N.Y., received his masters degree from Union Theological Seminary in New York City, and published biblical research he completed at Cambridge University in England. In 2007, he received an honorary Doctor of Laws degree from Rhode Island College.

Since 1965 he has been married to Anne Grant, an Emmy Award-winning writer, a nonprofit executive, and retired United Methodist pastor. They live in Providence and have two grown sons, including cover illustrator Lars Grant-West.

This electronic version of SECRETS & SCANDALS: Reforming Rhode Island, 1986-2006 omits notes, which fill 92 pages in the printed text.

Secrets and Scandals: Reforming Rhode Island 1986-2006, Afterword

Afterword: Making Government Good (2006–2016)

Related Slideshow: Rhode Island’s History of Political Corruption

Buddy Cianci

Joseph Bevilacqua

Thomas Fay

Brian J. Sarault

Edward DiPrete

Plunder Dome

N. Providence Councilmen

Charles Moreau

Joe Almeida

Gordon Fox

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Secrets and Scandals: Reforming Rhode Island 1986-2006, Afterword

Afterword: Making Government Good (2006–2016)

Related Slideshow: Rhode Island’s History of Political Corruption

Buddy Cianci

Joseph Bevilacqua

Thomas Fay

Brian J. Sarault

Edward DiPrete

Plunder Dome

N. Providence Councilmen

Charles Moreau

Joe Almeida

Gordon Fox

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