Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 44

Monday, January 04, 2016

H. Philip West Jr.

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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.

Part 4
44
Four-Letter Word (2003)

In his inaugural address from the gleaming State House steps, Don Carcieri called for “a constitutional amendment that clearly separates the power between the executive and legislative branches.” Diplomatically, the new governor said he was not criticizing members of the General Assembly but a defective system of government. He invited the crowd back in two days for the public unveiling of bipartisan separation of powers legislation that would be the centerpiece of his agenda.

On January 9, people packed the State Room. Leaders of the House and Senate sat by the podium as the new governor recognized Rep. Nicholas Gorham, Sen. J. Michael Lenihan, Sheldon Whitehouse, and me. He declared the bipartisan constitutional amendment “one of the most important things, if not the most important thing, we can get done.”

Rhode Island’s new House majority leader, Gordon Fox, promised to pass “meaningful” separation of powers legislation. He called the moment a “wonderful opportunity to redefine the working relationship between the legislative and executive branches.”

Carcieri welcomed RISOP Chairperson Alan Hassenfeld and Common Cause President Jim Miller to the podium for final comments.

An hour later, I stood on the Senate’s new emerald green carpet and watched senators signing as co-sponsors of Mike Lenihan’s separation of powers amendment. Second on the list was William V. Irons, freshly elected to the new constitutional office of Senate president, his signature a powerful signal that the Senate would pass our bipartisan bill. Of the thirty-eight senators in the downsized chamber, thirty-five became co-sponsors.

Rep. Nick Gorham faced slower going in the House. At his desk on the wine-red carpet, he showed me his list of thirty-eight co-sponsors, a majority of the seventy-five members. “Much easier than last year,” he said with a grin, “What a difference an election makes!”

But ominously missing from his list were the new speaker, majority leader, majority whip, and chairs of House committees.

Nor had Bristol Rep. Fausto Anguilla signed Gorham’s resolution. Anguilla had phoned in December on behalf of Murphy’s leadership team. He wanted me to review “in strictest confidence” a separation of powers amendment he was drafting. I met with him and marked sections I thought were problematic. The version he introduced in January showed only minor improvements.

Our bipartisan version would add only three words to Article V: “The powers of the government shall be distributed into three (3) separate and coequal departments: the Legislative, the Executive and the Judicial.”

Instead of three new words in Article V, Anguilla proposed to add almost two hundred. “Except as expressly provided in this Constitution,” Anguilla’s bill declared, “all legislative powers are vested in the general assembly and no department of government but the general assembly shall exercise legislative power.”

I had warned him privately that such language would cripple the Ethics Commission’s Article III authority to “adopt a code of ethics” and might prompt lawsuits against scores of administrative agencies that promulgated rules.

Worse, Anguilla’s leadership bill proposed to keep the “broad powers” clause: Article VI, Section 10. Twice since 1999, the state Supreme Court had used that clause to justify unfettered legislative supremacy. Three-quarters of the November 2002 voters had called for its removal.

Forty-three Democrats — House leaders and many reps who had thwarted separation of powers in 2001 and 2002 — signed on as co-sponsors of Anguilla’s bill. This was their smokescreen. While feigning support for separation of powers, they wanted a compromise that would preserve legislative supremacy.

On a frigid January night, more than three hundred people leaned through a biting wind from the ocean to attend a separation of powers forum at the Atlantic Beach Club in Middletown. The stylish restaurant stood where the creamy sands of Easton’s Beach gave way to a rock-ribbed peninsula, the very spot where a developer had proposed a time-share hotel in 1984. Attorney Joseph DeAngelis, the House majority leader, had won a controversial permit from the Coastal Resources Management Council, a majority of whose members were legislative appointees.

Now, the new governor and key legislative leaders took seats with their backs to huge windows overlooking a dark sea. Gov. Carcieri ad libbed themes from his inaugural address: the General Assembly’s domination of state government was dangerous, and it was time to pass the bipartisan separation of powers amendment. The audience cheered.

Newport Rep. Paul Crowley, a ten-term incumbent who had barely won re-election over a 19-year-old Republican challenger, countered the governor’s demand for haste. “This is a serious debate,” Crowley insisted. “For Rhode Island to adopt this bill without discussing this issue is not doing justice to the question.”

Crowley’s hometown crowd booed him, and from her seat next to mine, Sen. Teresa Paiva Weed whispered that the audience was not being fair to Crowley. In her turn at the microphone, Paiva Weed urged patience with the legislative process. “This is an exciting time,” she said with a wide smile. “We’re going to be restructuring government, and we need to talk, debate, and discuss how we do that.”

Another night, despite a rapid fall of heavy, wet snow, people filed into the historic nave at St. Michael’s Episcopal Church in Bristol for a debate between Rep. Fausto Anguilla and Roger Williams University Law Professor Carl Bogus. The combatants took turns behind the lectern, a polished brass eagle that gleamed in a beam of light from darkness far above. “We can’t rush this,” Anguilla declared. “We have to get it right, because this is probably the most important issue the legislature will take up for generations.”

Bogus and Anguilla differed sharply over how to treat the “broad powers clause,” which allowed lawmakers to exercise powers rooted in the Royal Charter of 1663. Bogus pointed out that the state Supreme Court had ruled twice that the clause allowed the General Assembly to create and also operate boards like the Lottery Commission. “The voters,” he said, “by an overwhelming majority, favored removing that clause.”

Anguilla parried that most voters had not understood the issue. “My legislation makes it clear that no branch of government can exercise ‘any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.’ ”

Audience members listened politely, then lined up at a microphone to ask questions. Several urged Anguilla to remove his name from the leadership bill. “We elected you,” said one woman, “and we want you to support real separation of powers. We’ve come too far for a bill full of gobbledygook.”

Anguilla tried to mollify her: “At the end of the day, I think you’re going to be pleased. We’ll produce a separation of powers amendment that everyone can live with.”

“Respectfully, Representative,” the questioner pushed back, “we can’t live with any continuation of the ‘broad powers clause.’ ”

In February, two fiery tragedies overwhelmed all else. As NASA’s space shuttle Columbia re-entered the earth’s atmosphere, it burst into flaming fragments that streaked across the Texas sky. Seven astronauts died.

Then a Warwick roadhouse called “The Station” went up in flames, leaving a hundred people dead and scores more in burn units.

Both tragedies involved reckless indifference on the part of officials who might have averted the disasters.

While medical examiners worked to identify charred corpses, Rhode Island’s new governor and his wife set up a refuge at a nearby hotel where families could wait for news. Don and Sue Carcieri comforted families and visited horribly burned survivors in hospitals. Carcieri spoke tenderly at memorial services, and while the issues were not linked, his presence and compassion enhanced his call for separation of powers.

In March, with legislative hearings about to begin, editors at the Providence Journal declared their unequivocal support for our amendment. “Rather than signing on to a bipartisan bill that would quickly get the job done,” the editors wrote, “House leaders have chosen to back a bill that, it appears, would leave them in charge and reform little.” The editorial pummeled Fausto Anguilla for trying to preserve the broad powers clause and for vastly complicating separation of powers language.

A few days after the editorial, I spoke with Rep. Elaine Coderre on the House floor. In her fifties, she had represented her working-class Pawtucket district for nineteen years. A veteran of countless battles, she now had the thankless duty of chairing the new House Committee on Separation of Powers, which included Nick Gorham, Fausto Anguilla, and Paul Crowley.

Peter Hufstader, our research director, had analyzed separation of powers provisions from state constitutions across the country. I handed Coderre a copy of his thick binder, Separation of Powers Provisions Reference Manual, and paged through its tabbed sections with her.

“This should save us time,” Coderre said. “How many boards do you think legislators serve on?”

I flipped to a tab that listed seventy-three boards where legislators and legislative appointees executed state laws. She skimmed the list, which included a precise enumeration of legislative appointments. Printouts of the enabling statutes listed executive functions in bold type. Coderre slid her finger down a page. “I can’t argue with that one,” she mused. “Or that.” She asked how we defined executive functions.

I said the Rhode Island General Laws had no definition and showed her a list we had culled from enabling statutes for particular boards: managing property, executing contracts, receiving taxes, investing funds, enforcing rules, issuing permits, collecting fees for licenses, and scores of variants.

“I may not agree with every detail,” Coderre said, “but this research helps. If you could present copies of this to our entire committee at our first hearing, I’ll put you on right after the governor.” Her face seemed to sag with the burden. “There’s one fact I hope you’ll remember,” she continued wearily. “No matter what the Journal’s editors think, we are not devious. We want to get this right.”

Two days later, she gaveled her new committee to order for the first of what she explained would be a series of hearings. In contrast to John Harwood’s resistance, William Murphy had arranged for Room 313, one of two rooms equipped for live television. In another dramatic departure, Murphy and Majority Leader Gordon Fox sat together in the audience.

“As we start,” Coderre said, “I want to be clear that better distinguishing between the three branches of Rhode Island government is an issue whose time has definitely come. I know feelings are strong, but we are going to do this fairly.”

Rhode Island’s new chief executive testified for nearly an hour from a prepared text, urging the committee to pass the bipartisan bill promptly.

“Respectfully, Governor,” asked Rep. Paul Crowley, vice chair of the committee, “under separation of powers, should a truly independent court system submit its budget directly to the General Assembly rather than to the governor first?” Crowley’s question set a trap for the novice governor.

“Frankly,” Carcieri answered agreeably, “I don’t have a problem with that.”

I winced. The Constitution required the governor to present a consolidated budget that included court expenses each year. His answer invited tampering with the bipartisan amendment.

Rep. Peter Kilmartin, a Pawtucket police detective who was now studying law, tested Carcieri with the argument that legislators who served on boards were providing needed oversight. He rehashed the traditional trope that lawmakers on boards became effective advocates for funding.

Carcieri tried to turn the argument. “The governor should be making the appointments,” he declared, “and if the people I appoint don’t do the job, I hope you’ll hold my feet to the fire.”

When Carcieri finished, Coderre called on Peter Hufstader and me. We handed boxes full of tabbed binders to the clerk and took seats at the witness table. I introduced Hufstader, and he walked committee members through the reference manual.

Sen. Mike Lenihan’s steady focus, command of the law, and unflappable demeanor had restored the favor of Senate President Bill Irons. Irons put Lenihan in charge of the Senate Committee on Government Oversight, which had jurisdiction over separation of powers. With Irons as co-sponsor of Lenihan’s bipartisan amendment, no one expected fireworks when Lenihan posted it along with a rival bill by Sen. Daniel Connors for public hearing.

Both Gov. Don Carcieri and former Atty. Gen. Sheldon Whitehouse were waiting to testify when Irons took his seat in the committee and upstaged them. “While we’re considering separation of powers,” Irons announced, “the balance of powers between the House and Senate should not be left unattended.” His target was the Joint Committee on Legislative Services (JCLS), where the House had three votes and the Senate only two. For generations, speakers of the House had held hostage Senate personnel, offices, computers, and pride. Irons hurled his grudge like a grenade into the separation of powers debate. “What sense does it make,” he demanded, “to have a half-hearted reform?”

Amid stunned silence, Irons pushed on: “I know it confuses some, but the issue here is building a government our citizens can trust.”

As long as I had known him, Irons had reveled in political theater. Was he bluffing? Would he jeopardize separation of powers to force parity between the chambers? Once he took such a strong public stand, could he back off without losing face?

“I have every appreciation of the Senate president’s position,” Lenihan told reporters after the hearing, “but I have reservations based purely on pragmatism about pairing these issues. I don’t want the issue of separation of powers to fall over an issue that is related but not identical.”

When the reporters asked me, I told them Common Cause agreed with Irons about the need to balance powers between the House and Senate in managing the legislature. But I said a simple change in the law could resolve that problem without incorporating such a change in the separation of powers amendment.

Speaker William Murphy soon heard what Irons had said and issued a statement. “Management of the legislature,” Murphy said “has absolutely nothing to do with separation of powers.” He lambasted the comment as “an eleventh hour power grab.”

Many were sporting green for Saint Patrick’s Day when Lenihan convened his committee again. Every witness urged the committee to pass his bipartisan amendment. Topher Hamblett, the lobbyist for Save the Bay, argued that it was impractical for lawmakers to hold day jobs, deliberate in the General Assembly, and serve on quasi-public boards.

After his hearing, Mike Lenihan announced that the Senate would not tie the question of balancing power between the House and Senate to the constitutional separation of legislative and executive powers. He explained that he was not sure how the bipartisan amendment might be reconciled with a House version, which might differ in significant detail. “I’ve been around here long enough to know there are many ways to wordsmith a bill,” he said. “But the policy I’m going to follow is: ‘On matters of principle, stand like a rock.’ ” His committee voted unanimously to send his bipartisan resolution to the Senate floor.

The Senate took up separation of powers on March 26. Without pride in his voice, Lenihan hoped his bill would “restore that vital but eroded faith” in state government. All thirty-six senators in the chamber voted for Lenihan’s bipartisan amendment.

Debate over separation of powers in Rhode Island took place against the surreal backdrop of war in Iraq. Television showed spectacular nighttime bombing attacks on the palaces of Saddam Hussein. On the day Baghdad fell to American forces, the House Separation of Powers Committee held a crucial public hearing. Patrick T. Conley, a former history and constitutional law professor at Providence College, spoke at the committee’s request. “In my testimony,” he announced, “I want to look at American history rather than hysterics.” He dismissed the drive for separation of powers as “a partisan plea for power.”

Conley praised the Royal Charter of 1663 as the most liberal government document of its time, and said the theory of separation of powers was not expounded until the middle of the seventeenth century. “And because Rhode Island was already the most democratic colony,” he said, “the General Assembly saw no reason to draft a constitution.” Conley summarized increasing pressure for a Constitution that led to the Dorr Rebellion and the Constitution of 1843. “In that constitution,” he said, “the legislature was dominant, and few express powers were granted to the governor.”

He catalogued constitutional amendments that had enlarged the powers of the state’s traditionally weak chief executive: establishing the gubernatorial veto; directing the governor to prepare an annual budget; extending the governor’s term from one to two years, and then from two years to four; ending the Grand Committee election of Supreme Court justices; and letting the governor appoint judges from a list. All of those advances, Conley said, had been granted by the General Assembly and approved by voters.

Conley criticized Gov. Almond’s two non-binding referenda on separation of powers, which he said were “framed as leading questions. The voters were provided with misleading information. The wording was reminiscent of P.T. Barnum. There is no overwhelming popular mandate for the radical change that’s being proposed here.”

Members of the audience waiting to testify became restive as the historian’s testimony stretched into a second hour. “Madam chair,” called former Rep. Rod Driver, “is there a time limit for testimony?”

“I haven’t imposed time limits on other witnesses,” Coderre replied.

“Well, you should!” came a shout from the back of the room. “We’ve heard enough!” John Carothers, a Warwick activist, was on his feet, yelling.

“Please,” Coderre shouted. “We must have order.”

Carothers carried on loudly until Capitol Police hustled him out. With order restored, Conley argued that the broad powers clause should not be deleted but amended by adding a single word. He proposed that the General Assembly “continue to exercise the legislative powers it has heretofore exercised, unless prohibited in this Constitution.”

“Professor,” Nick Gorham asked, “can you tell us another state that has a similar phrase?”

Conley thought several might and said he would get back with an answer.

“To your knowledge,” Gorham persisted, “has any other state supreme court said their system of government is one of ‘quintessential parliamentary supremacy’?”

“Not to my knowledge,” Conley replied. “I regarded that part of the 1999 advisory opinion as hyperbolic. I don’t believe we have such a system.”

Many others were waiting to testify. Henry Sharpe, the retired president of Brown and Sharpe, took his turn. “I’ll be very brief,” he began. “I’ve published no books, and I’m not a lawyer. I did have the experience for fifty years of running a major corporation in Rhode Island. At our peak, we had over eleven thousand employees in the state. Today, we have only about two hundred left.”

The retired executive said he had always been both an advocate for and a critic of Rhode Island. He told of driving IBM’s president Thomas J. Watson from an event at Brown University to the airport. “Since I had him as a captive audience, I put my Rhode Island promoter hat on. ‘Tom,’ I said, ‘IBM should build a plant in Rhode Island.’ ”

Watson shouted that he would never do that. “We were on Interstate 95, just going into the Thurbers Avenue curve,” Sharpe recounted. “I almost wrecked the car.” The IBM executive had said he could never build where people were so jaded about government corruption.

“I knew Watson was right,” Sharpe said. “I’d always known it. It’s too cozy, and not just because we’re small. It’s because the legislative leaders have their fingers in everything. It’s because we lack separation of powers to keep the General Assembly in check.”

He spoke of the two overwhelming votes of the people for separation of powers. “Seventy-five per cent of the electorate know there’s trouble here that shouldn’t be. They sense that unless this gets straightened out, we’ll be in even worse trouble.”

“And which bill do you support?” Gorham asked.

“Yours,” Sharpe replied. “The citizens have made their recommendations clear. The governor has joined. The Senate has voted its support. Now it’s up to you in the House.” Sharpe closed by observing that separation of powers would not solve all problems but would be what he called “a great start.”

Providence Journal reporter Liz Anderson broke the story that House leaders had paid two academics, Robert F. Williams and G. Alan Tarr, to defend their legislative turf. A third, Alan Rosenthal, came from Rutgers without pay at the request of his former student, political science professor Maureen Moakley. Rosenthal’s specialty was state legislatures, and he suggested that Rhode Island’s problems might stem more from single-party control of the General Assembly than from weak separation of powers. If too many Democrats was the problem, he joked, the state could import Republicans from Ohio or take steps to increase Republicans’ birth rate.

Rosenthal said he favored separation of powers but wondered what problem the amendments under consideration aimed to address. Had legislators on boards done dreadful things? Were the boards not functioning well? What was the infirmity?

“You’ve got the solution,” he said, speaking confidently without notes. “Prohibit legislators from serving on boards and add language that separates the powers. But couldn’t the problems be solved by statute rather than constitutional amendment?”

Wondering aloud whether the Rhode Island governor’s office was really too weak, Rosenthal noted that governors typically had an upper hand over legislatures via the bully pulpit through which they could command the media with a single voice. The General Assembly had given Rhode Island’s governor unique power to place a referendum on the ballot. No other governor — as far as he knew — had such a powerful tool for mobilizing public opinion. Legislators had made mistakes, the Rutgers professor suggested, but why “punish the whole legislature because a few may have screwed up?”

Rosenthal made it sound as if separation of powers advocates were obsessing over superficial problems. In a masterful performance, he advised the committee to take a minimalist approach when amending the Constitution — lest they “open a can of worms and not be able to get the worms back into the can.”

University of Rhode Island political science professor Maureen Moakley cast the issue in historical terms. “Given the historical hostility toward the British monarchy,” she testified, “Massachusetts in 1780, Vermont in 1793, New Hampshire in 1784, Maine in 1819 and, of course, Rhode Island in 1842 all approved constitutions that granted broad powers to the legislative branch and severely limited the power of the executive.” She omitted the fact that since the nineteenth century the other New England states had established robust separation of powers, but Rhode Island had not.

She testified that Superior Court Judge Michael Silverstein’s ruling on the Lottery Commission “got it exactly right” because power in the hands of lawmakers “was in fact too separate — in that just a few people on that commission were essentially making laws, bypassing the entire representative system.” She noted correctly that the commission “was creating regulations and policy relating to lotteries without the consent of the entire House and Senate and without the ability of the governor to weigh in with a veto.”

Moakley did not mention that the Supreme Court had overruled Silverstein and reaffirmed the Lottery Commission’s composition with a lopsided majority of legislators.

The citizens of Bristol took pride in American history. Since 1785 they had been mounting Fourth of July parades, the longest continuous series in the United States. In 1993, the town celebrated the opening of Rhode Island’s only law school, an event that transformed what began as a junior college into Roger Williams University. Perched on a breathtaking peninsula that stretched into Mount Hope Bay, the school was a source of jobs and pride. Two members of the House Separation of Powers Committee — Raymond E. Gallison Jr. and Fausto Anguilla — represented parts of historic Bristol.

Carl Bogus’s cachet as a member of the law school faculty enhanced his credibility in the historic town. In an interview with the Bristol Phoenix he dissected Anguilla’s legislation and stressed the need for both of the town’s representatives to work for authentic separation of powers.

His advocacy produced results. On two successive Thursdays, the Phoenix ran forceful editorials. The first, entitled “Lords of the manor still blocking the gates,” ripped Bristol’s hometown representatives. “As the debate comes to a head,” declared editor Scott Pickering, “the future of Rhode Island government will be determined.” Pickering urged his readers to demand that Anguilla and Gallison switch their support to the bipartisan bill. He also listed their home phone numbers with email addresses. “Tell them it’s time to give up the castle,” the broadside ended. “The old ways are changing.”

Pickering’s second editorial hit even harder. “With the aid of Rep. Fausto Anguilla, the House of Representatives leadership has attempted to stonewall real reform,” he wrote. “Rep. Anguilla and his cohorts in the House now stand alone in support of a watered down bill that will not get the job done.”

Predictably, Bristol’s representatives defended themselves in letters the Phoenix published in full. Gallison wrote that “the voters want our legislature reined in but not totally eviscerated,” and Anguilla complained of bullying in the House.

Not long after that, the law school’s interim dean, Bruce I. Kogan, dropped by Bogus’ office to deliver a message: whenever Bogus spoke about separation of powers, he must make clear that he was expressing his own opinion and not that of the university.

Stunned, Bogus demanded to know more, and Kogan told him that the university’s president, Roy J. Nirschel, had raised the concern after a conversation with two legislators. Bogus marched to the president’s office for an explanation. Nirschel acknowledged that two legislators whom he refused to name had spoken with him about separation of powers and the university’s tax-exempt status. Rather than let the matter simmer in silence, Bogus contacted reporters, who phoned the president’s office.

Gallison and Nirschel admitted separately to Brian Comfort, a reporter at the Bristol Phoenix, that they had discussed the issues, but Nirschel insisted: “Nobody ever held the university hostage. There were no threats, implicit or explicit.”

“With respect to someone threatening the tax exempt status of Roger Williams University,” Gallison said, “I certainly did not do that.”

Spring came in fits and starts across southern New England. Outside the State House, skateboarders sped along Smith Street, oblivious to traffic. Near the end of April, Bill Irons fired a shot across the bow of House leaders. In comments first to Providence Journal reporter Liz Anderson and then in an unprecedented conversation with the Common Cause board, Irons urged separation of powers advocates to hold out for the Gorham-Lenihan version and not accept any compromise from the House. “There is no reason for these groups to negotiate,” he declared. “Why would you accept something other than what you think is right?”

Irons’s stand with a Republican governor and community activists in defiance of House Democrats surprised many. “This is one of the few times in my twenty years,” Irons said, “that the voters of this state have clearly, with good representation, said they want a specific piece of legislation. I’m standing up for what the people of this state have said.”

The tide was running with us, but weeks slipped away without a final text, and no one knew what compromises might become necessary. My hackles went up when leaders of several groups in the coalition told me they had been invited to the speaker’s office to discuss what their organizations wanted in an amendment. Was the new speaker of the House testing the coalition’s resolve, or trying to divide and conquer?

Murphy avoided me. Each day I cruised the red-carpeted aisles of the House chamber to check with members of the Separation of Powers Committee. Occasionally, I posted myself at the top of the marble stairs that the speaker and his entourage had to take down to the floor. When I asked to walk him down, he grinned playfully. “I know what you want, Phil. We still don’t have consensus on a text.”

“When do you expect to, Mr. Speaker?”

“Wish I could tell you,” Murphy said cheerily. “We’re just not there yet.” Our conversation over, he swept onto the House floor and bounded up to the rostrum.

Finally, in the fourth week of April, he promised me the text. “On Monday,” he said. “Call my office, and we’ll have a copy for you.”

I shook his hand and thanked him. With his handshake promise we scheduled back-to-back meetings for Monday, April 28. The bipartisan drafting committee would analyze the House text and then report its recommendations to our growing coalition.

I should have known better. I kept calling the speaker’s office, hoping for a copy. “It’s not ready,” said Larry Berman, Murphy’s spokesperson. “I’ve told him you called. What else can I tell you?”

Time ran out without their promised text.

The drafting committee met in a conference room at the First Baptist Church in America where Jim Miller was now senior pastor. Sheldon Whitehouse, Nick Gorham, Mike Lenihan, and Carl Bogus were waiting when I arrived from the State House. I apologized for not having the promised text from Murphy.

“No surprise,” Gorham grumbled. “I thought he was just stringing you along.”

Always hopeful, Miller suggested that we review the versions we had. All agreed that Anguilla’s bill was unacceptable, and we saw no clear path toward a reasonable compromise or victory.

The movement had grown and evolved. About thirty leaders of eleven groups showed up for the full coalition meeting. From behind an antique brass music stand Miller welcomed them. “As you know,” he said, “we expected to have the House version, but we don’t.” He asked members of the drafting committee to share their thoughts.

“I think they’re in flux,” Carl Bogus began. “We’ve upset their applecart. They’ve been reaching out to groups in our coalition, probably testing to see if they can split us apart. I hope we’ll all hold together and not let that happen.” He stepped from behind the brass lectern. “I want to say as forcefully as I can that Anguilla’s bill will not produce separation of powers in any recognizable form. It may be well-meant, but it’s fraught with problems.”

“I’m with Carl on that,” declared Gorham. “They paid witnesses to come in, and we went through the formalities of hearings. Even their hired guns had problems with Anguilla’s version, but none of that mattered. Committee hearings really don’t mean a thing. When they figure out what they can accept, the word will come down from Murphy’s office on the third floor. They didn’t provide a text today because they haven’t got their ducks lined up. They’re still desperate for some way to cling to their power and convince everybody that they’ve given us authentic separation of powers.”

Sheldon Whitehouse stood up. Not yet fifty, his abundant hair had gone gray on top, but he seemed more comfortable in his skin than he had a year earlier when he was campaigning for governor. “This is a critical moment,” he began. “We wrote the Gorham-Lenihan language, and we all want closure on it. But I think the House and Senate and governor have to work out the final details.”

“Sheldon’s right about that,” said Jeff Grybowski, a young lawyer who had represented Carcieri in the original drafting process. With close-cut hair and muscular shoulders, he looked like a college football player. “We’re talking frequently with Murphy and Irons. Obviously, I can’t tell you the details, but it will help if you give us space to get this done.”

“Why didn’t Murphy provide a text today?” Burt Hoffman demanded. “It’s serious to promise with a handshake and not deliver.”

“I can’t speak for the speaker,” Grybowski said. “I can tell you that they know how much is riding on every word.”

“My concern,” Whitehouse added, “is that we not let the perfect become the enemy of the good. We may be at the point where outside pressure stops being helpful. I think our pressure must now be on the triumvirate — Carcieri, Murphy, and Irons — to work it out.”

“I have to disagree,” said Bogus. “Public pressure and fear of the voters have brought us this far. We can’t be nasty, but we have to be specific about what language we can accept, and we have to keep the pressure on.”

Jim Miller looked to Mike Lenihan, who had not spoken.

“To tell this coalition what to do,” Lenihan began with a smile, “is above my pay grade. But I hope you’ll stand solid behind the bill we drafted last fall and now seems to have my name and Rep. Gorham’s stamped on it. After hearings in my committee, the Senate passed it unanimously.” He peered over half-frame glasses. “The challenge now will be for all of us to speak with a consistent and collective voice. We’ll probably have to accept some final trade-offs, if only to let the House finish this process without losing face.”

“What kind of trade-offs?” Hoffman called.

“Always hard to tell,” Lenihan answered. “I assume we could let go of ‘separate and co-equal’ and accept ‘separate and distinct’ instead, which they clearly like. Since so many other states use that language, it would make little or no difference. I remain seriously troubled about keeping the broad powers clause in any way, shape, or form. If the House leadership gets to keep it, the rest may be for naught. But if they give it up, they’ll need some face-saving device.”

“And what might that be?” Hoffman asked.

“Hard to tell,” Lenihan answered again. “Perhaps some kind of preamble.”

“To go into the Constitution?”

“Probably not. Just to express legislative intent to the voters and for the record.” Lenihan sat down.

Bob Arruda, the president of Operation Clean Government, stood up at one side of the crowd. “This has been helpful,” he said. “I agree that we can’t accept continuation of the broad powers clause in any form. I’m fine with substituting ‘separate and distinct’ for ‘separate and co-equal.’ ” Arruda clasped his hands. “I think we need to agree among ourselves that no one from our coalition will go in to negotiate with Murphy. They’ve proven extremely skillful at divide and conquer.”

“Second,” someone said, and Miller called for a vote that was unanimous.

A second vote declared “a strong consensus in support of the bipartisan Lenihan-Gorham resolution.”

A third expressed “disappointment that the House leadership has not yet provided any substitute text for public discussion.”

“I would move,” Whitehouse said, “that the coalition also tell the speaker that this historic moment demands political agreement among the House, the Senate, and the governor.”

“Second,” several shouted, and the motion passed. They assigned me to write about these four points of agreement to all the State House players and members of the coalition.

Two weeks later Rep. Nick Gorham called me into the House Minority office before the afternoon’s session. “We have agreement on my bill,” he said. “I think you’ll be pleased.”

“Show me.”

“I can’t,” he said. “The speaker made us promise. They’re keeping it extremely close until a press announcement on Thursday.”

“Who agreed?”

“Murphy, Fox, and Coderre for the House majority. Bob Watson and I for the House minority. Jeff Grybowski for the governor’s office.”

“Has the Senate agreed to it?”

“Not that I know of.”

“Has Sheldon seen it?”

“I don’t think so.”

“So can you tell me anything that’s in it?”

“You’ll be happy,” Gorham said, barely above a whisper, “that they’ve agreed to delete the broad powers clause.”

“Entirely?”

“Entirely. They’ve tweaked a section about legislative power in Article VI, Section 2. Aside from that, it’s pretty much our whole bill.”

“And you’re satisfied?”

“I think I am. And once they pass it, there’ll be no going back.”

Few substitute bills rate the exposure of a televised press conference, but word went out that House leaders would unveil a revised version of Gorham’s separation of powers legislation on May 15 in the House Lounge. As people gathered, portraits of former speakers stared down from gilded frames on crimson walls: Harry Curvin, John Wrenn, Joseph Bevilacqua, Matty Smith, Joe DeAngelis. Each, during his time on the dais, had been the most powerful politician in Rhode Island. I assumed that all would have been horrified at whatever these new leaders of the House were about to offer as a compromise constitutional amendment on separation of powers.

As representatives filled the seats, few seemed pleased that I was there. Every chair was taken, and scores of people stood along the walls when House leaders, both Republicans and Democrats, marched in together.

In his opening remarks, Murphy thanked Anguilla for agreeing to withdraw his bill in deference to a revised version of Gorham’s bill. This legislation, Murphy said, would fulfill the promise his leadership team had made in January: the House would pass a separation of powers bill during this session.

“This exercise has proven that the deliberative legislative process works,” Murphy added. “I’m proud that we were able to bring all the parties together — after much debate — and reach an agreement on what we believe will be the best bill for the people of Rhode Island.”

Majority Leader Gordon Fox followed Murphy at the podium. “Over the course of many years,” he said, “the issue of separation of powers has been discussed in Rhode Island, perhaps more frequently than any other. Yet it has never been debated by this chamber. This bill,” he added, “is one of many reforms that represent the dawning of a new era here.”

Was this real or merely spin? Either way, public pressure had moved him and Murphy in our direction.

Staff members passed copies of the proposed substitute version of Gorham’s bill down the rows of chairs. It used “separate and distinct” in place of “separate and co-equal.” We could live with that.

Much more important, it would delete the broad powers clause entirely. But it would amend another section on legislative power by striking one word and adding four:

Article VI Section 2. Power vested in general assembly — Concurrence of houses required to enact laws – style of laws. The "Full" legislative power, under this Constitution, shall be vested in and "exercised by" two houses, the one to be called the senate, the other the house of representatives; and both together the general assembly. The concurrence of the two houses shall be necessary to the enactment of laws.

I wondered why they wanted to add the underlined words in a section of the Constitution we had not proposed to change.

“From the start of this discussion,” Fox was saying, “our leadership made clear that we were committed to passing true separation of powers legislation. Today you are witness to this historic first step.”

The self-congratulation and accolades continued. Sheldon Whitehouse had slipped into the room, and several speakers praised him as “the Father of Rhode Island’s modern separation of powers movement.” Now in private practice with a major downtown law firm, Whitehouse beamed and waved.

At the podium, Nick Gorham savored his triumph. “This just shows,” he declared, “that if you really believe in something, and you stick to it, you can actually get something done up here. Even against tremendous odds.”

“We’re not there yet,” Sheldon Whitehouse told me the next morning on the phone. “The Senate and House might still refuse to accept each other’s bills. The House clearly wants ‘separate and distinct’ instead of ‘separate and co-equal.’ ”

I reminded him Common Cause had no problem with “distinct,” which had been in amendments we had been pushing since 1997. “But ‘full legislative power’ is a problem. No other state constitution has language like that.”

“Could be a problem,” Whitehouse agreed. “Without court rulings on that specific language, it could spawn litigation. But it’s amazing how far they’ve come. Too bad Murphy didn’t recognize the contribution Common Cause and the coalition have made.”

“Thank you,” I said. “I think they see us as the enemy for pushing so hard.”

Whitehouse laughed. “As you remember, I argued against a frontal assault, but your approach clearly worked.”

“That was more than two years ago,” I said. “I was glad — after all this has cost you — that they’re calling you ‘the Father of separation of powers in Rhode Island.’ ” I reminded him of his comment that “we would never cut the deep root of Rhode Island’s corruption until we got to separation of powers.”

“That sounds pretty good,” Whitehouse said, “but I don’t remember saying it.”

“I wrote it down the moment I left your office,” I said. “I’d love to take credit for it, but you’re the one who said it.”

With the House leadership’s bill finally available, the separation of powers coalition gathered at the First Baptist Church in America. Members of the drafting committee again sat across the front of the room. Liz Anderson, the Providence Journal reporter who had been covering the issue all spring, had asked to come. She sat unobtrusively at one side.

“We’ve had a few days to look at the revised bill,” Jim Miller began. “I hope we can reach consensus this afternoon, so that all of our organizations speak with one voice at the hearing tomorrow.”

Nick Gorham spoke first, arguing that the addition of “full legislative power exercised by” the House and Senate was not a trap, but an affirmation of the General Assembly’s role.

Sheldon Whitehouse expressed concern that the new House language might prompt some future judge to interfere with the duty of administrative agencies to promulgate regulations.

Kevin McAllister, a lawyer on the Common Cause board, agreed. “I’m queasy about this assertion that ‘full legislative power’ is to be exercised exclusively by the General Assembly. I think those words, when read together, distill the broad powers clause and move it to a different section.”

“Forgive me,” Gorham said. “I just don’t see that. I wouldn’t have signed on if I didn’t believe it would work. The General Assembly can already change any rule adopted by any executive agency. All we have to do is change the law.”

“For the life of me,” said Bob Arruda, “I can’t understand why we’re debating Nick’s amended bill when we have the Lenihan bill, which is much better. We should stand strong for the original.”

Kendra Beaver, a lawyer for Save the Bay, rose with the text in hand. She affirmed “separate and distinct” as acceptable because judges would find precedent from other states, but she thought the phrase “full legislative power exercised by the Senate and House” would cause problems precisely because it was unique. “Judges will look to other states but find no precedent,” she said. “That alone should make us cautious about accepting the revised House text.”

One lawyer after another expressed concern about the “full legislative power” clause. Despite Gorham’s reluctance, a clear consensus formed: we would applaud how far the House had come, and we would agree to “separate and distinct.” For all the rest, we would push for the original bipartisan Gorham-Lenihan amendment.

In his weekly Providence Journal column, Ed Achorn asked: “Why did the House leaders take six months to join the reformers? Clearly, these leaders adopted a waiting game, praying that the firestorm for separation of powers would subside. They hoped to slip in deceptive language that would protect their vast power.”

Achorn added that the ploy had failed because ordinary Rhode Islanders “kept calling lawmakers, urging action . . . kept packing hearings at the State House . . . kept arguing that they wanted less corrupt and more accountable government.” He warned that House leaders were now proposing language found in no other state constitution.

At the start of her committee’s hearing on May 20, Elaine Coderre had her clerk pass out a written report stating that “full legislative power” had not been added to allow tampering with administrative rule-making. Comprised of three sentences, the report seemed barely a footnote:

The committee wishes to make clear that the amendments to the Gorham bill are not intended to change and should not be construed as changing the ability of the General Assembly to delegate legislative powers to the Executive branch in accordance with existing law. . . . The purpose is to assure reviewing courts that the legislature retains all legislative powers.

Paul Crowley added that the legislature could give up the broad powers clause but must refuse to “let another branch strip us clean in the future.”

Advocates for the original bipartisan bill dissected the amended text. “The new language makes me queasy,” Kevin McAllister told the committee. “As a lawyer, I know that courts interpret ‘the plain language’ of a constitutional provision, and I’m not at all sure this committee report would carry any weight.”

“Changes are made for a purpose,” Carl Bogus told the committee. “What the heck is the purpose here? In writing a constitution, every word is deemed to have meaning. Every change has meaning. As sure as I am sitting here,” he continued, “those added words are going to be the focal point of some future court action. We don’t know when, we don’t know what the particular cause will be, and we don’t know who the advocates will be. But it will happen.”

I testified that the existing language on legislative power was virtually identical to comparable sections of forty-four other state constitutions. Adding “full” and “exercised by” would make that section of Rhode Island’s Constitution unique. “Why are you doing this?” I asked. “Is it necessary? What does it add?”

Coderre’s committee made no changes and voted unanimously for Gorham’s revised bill, with their explanatory report, to the full House. This was the first time in history that a House committee urged passage of a separation of powers amendment.

“It feels great,” Gorham told reporters after the vote. “It’s a good day for all Rhode Island.”

Two days later, I sat in the House gallery above the dais. In a rare convergence, Majority Leader Gordon Fox and Minority Leader Bob Watson moved jointly to suspend the rules so that Gorham’s amended bill could be moved forward from the next day’s calendar. Then, in a step that would have been unthinkable a year earlier, Elaine Coderre recommended Gorham’s amended bill for passage. “The system worked,” Coderre said. “It didn’t work fast. It worked deliberately and with a lot of research. We were asked to fix something, and we came up with language to fix it.”

Fausto Anguilla, who had withdrawn his competing bill, opened the debate. “We did not kowtow to anyone,” he declared. “We were not bullied into this. We did not rush the process to please anyone who was criticizing us. What we did was the people’s work, and we did it well.”

Several representatives groused about the votes everyone knew they must cast. Thomas Slater of Providence said he had been intimidated and bullied over the issue, and would cast a “very reluctant” yes.

Nick Gorham, buoyant after having his separation of powers bill crushed in each of the two previous years, told his colleagues that Thomas Wilson Dorr had fought unsuccessfully for genuine separation of powers in a state constitution. “In voting for this now,” Gorham exulted, “we are fulfilling the last piece of what Dorr wanted in the People’s Constitution.”

Even Providence Rep. Paul Moura, a long-time foe of separation of powers, urged passage of Gorham’s amended bill.

Gordon Fox spoke last. “This does include an element of stepping into the unknown,” Fox declared emotionally. “I’d be lying to you if I didn’t say that. As an institution, we will change. But I have no hesitation to believe that this institution will adapt.”

From the gallery above the rostrum, I watched John Harwood rise from his seat near the back and walk toward the rear exit. He wore a tailored tan suit that emphasized his muscular shoulders. He had not spoken during the debate and hid his feelings behind a practiced smile. He paused briefly as Rep. John McCauley rose to shake his hand and whisper in his ear. Then the man who had for ten years been the most powerful political figure in Rhode Island walked alone between the massive oak doors and out into the rotunda. Without looking back, he descended the broad marble stairs.

“Shall 5081 as amended pass?” Murphy called Gorham’s bill number from the rostrum. “All those in favor, press the green button. Those opposed, press red.”

The vote for passage was 71–1. Rep. Joseph Faria of Central Falls cast the only negative vote.

After the House broke for the day, Providence Journal reporter Liz Anderson quizzed Faria about his reasons. Avoiding any mention of patronage, he said, “We just gave up a lot of say for our constituents that we are no longer going to have on those boards.” He added: “Half the people in this room voted for this bill so they could get re-elected. They’re not concerned about doing any good. It’s ridiculous the way they voted.”

I often gave Edward Achorn details that landed in his Tuesday columns or Providence Journal editorials, which he wrote in deft strokes. The newspaper quickly called for “the obvious compromise,” the Senate trading “separate and co-equal” for “separate and distinct,” which the House preferred. “In return,” he suggested, “take out the House’s redundant (and possibly mischievous) words ‘full’ and ‘exercised by’ in delineating the legislature’s functions.”

Witnesses crammed the Senate Lounge when Sen. Mike Lenihan convened his Committee on Government Oversight for the first of two hearings. In an extraordinary move, Rep. Nick Gorham crossed over to testify before the Senate committee. He insisted the words “full” and “exercised by,” had been added to ensure that no court would interpret the amendment as stripping away legislative power over quasi-publics and agencies that promulgated rules. The changes, Gorham said, were “inconsequential, of almost vanishing significance.”

Carl Bogus disputed Gorham’s word “inconsequential” to describe the House’s new phrasing. “Courts,” he declared, “do not construe any words in a constitution as ‘inconsequential.’ It would be an Alice-in-Wonderland argument to tell a court that we made changes to something so it would remain unchanged.”

Sheldon Whitehouse testified that the new House language was “potentially treacherous.” He added: “The public would be well served if that were taken out.”

Nancy Rhodes, the former president of Common Cause, offered a new metaphor, a jetliner without radar trying to land in dense fog. “All of us want to bring this plane in, but we have to circle the field until we’re assured of a safe landing,” Rhodes said.

Pawtucket Times reporter Jim Baron told Lenihan he had heard talk of time running out for agreement on separation of powers. “That’s a lot of hogwash,” said Lenihan. “Let me say emphatically, there is more than enough time to get this issue resolved.” Without criticizing House leaders, he added: “I’ve said all along that there are different ways to wordsmith a bill, but on matters of principle you stand like a rock. There are principles involved here, and I’m certainly not going to abandon them.”

Several days later Mike Lenihan phoned to say that House and Senate leaders were deadlocked on a final text, and he was ready — in classic football language — to blitz the House. He would introduce a new version — identical to the original, except that it would include “separate and distinct” in place of “separate and co-equal.” He would also amend Gorham’s bill to get rid of “full legislative power” and make it exactly the same as his new bill. The Senate would push both bills back over to the House.

“What will matter,” he added, “is how much pressure you can generate over on the other side.”

On June 11, Lenihan called his Government Oversight Committee to order. In an extraordinary display of support, both Irons and Majority Leader Joe Montalbano took seats in the committee. Lenihan opened with a carefully crafted statement. He explained for those in the room and watching on television that negotiations with House leaders over the controversial four words had been fruitless. The House agreed to drop the phrase “exercised by” but still insisted on “full legislative power.”

“I want to make clear,” he explained, “that our action on the Senate side is not a ‘take it or leave it’ position, but neither are we angling for further adjustments in this legislation.”

The clerk passed out copies of his new resolution and a substitute version of the Gorham amendment — now a clone of his new bill. The committee approved both.

Irons told reporters that the ball would now be squarely in the House’s court and leaders there needed to rethink their position. “I would hope we do not see this measure again. It is now time to put separation of powers behind us.”

On June 12, the full Senate unanimously passed both Lenihan’s new separation of powers amendment and his identical revision of the Gorham bill. A page carried both across to the House of Representatives.

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Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 44

Part 4
44
Four-Letter Word (2003)

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, Chapter 44

Part 4 44 Four-Letter Word (2003)

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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Part 4
44
Four-Letter Word (2003)