Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 51

Monday, February 22, 2016

H. Philip 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.

Part 4

51 

Reconstruction 2005–06 

After their 2004 casino proposal crashed and burned, promoters tried again in 2006. West Warwick Rep. Timothy A. Williamson began quietly circulating a draft that would permit a Narragansett Tribe casino to be “privately owned.” He made no mention of Harrah’s Entertainment, which had bankrolled the 2004 effort. “Tax proceeds” would be “dedicated to property tax relief for Rhode Island citizens,” and the tax rate would be written into the Constitution: twenty-five percent of net gambling revenues would flow to the state, far short of the sixty percent Lincoln Park and Newport Grand were paying. 

Williamson also proposed to “carve out” an exception from the Separation of Powers Amendment for a new seven-member gaming commission that would be controlled by legislative appointees. The speaker, Senate president, and governor would each appoint two; the attorney general would name one. The three executive branch appointees would require Senate confirmation. 

Providence Journal State House bureau chief Katherine Gregg got a secret draft of Williamson’s legislation and asked several people for reactions. 

Joe Larisa, who had served as executive counsel to Lincoln Almond, blasted Williamson’s plan: “Before the ink is even dry on the Separation of Powers Amendment, which was a decade-long battle to introduce good government into our three-branch system, this constitutional amendment is proposing to gut it.” 

I hammered both Williamson’s attack on separation of powers and his attempt to set a tax rate in the Constitution. I pointed to the near impossibility of ever raising a tax rate once it was written into the Constitution. “I can bet you that Harrah’s will raise and spend enormous amounts of money to prevent any higher tax rate.” 

Reactions were so negative that Williamson backed off. Two months later, he filed a version that would grant exclusive constitutional status to “the Narragansett Indian Tribe and its chosen partner.” This time he specified a tax rate that would start at twenty-five percent of net gaming income and rise to forty percent — still significantly less than the sixty percent Lincoln Park and Newport Grand paid. I saw only one improvement: his plan for a gambling control board with four legislative appointees had vanished. 

 

A danger faced Rhode Island that few understood. No one knew what rules — if any — would govern campaigns for or against a casino. Two years earlier the ACLU had sued to block the Board of Elections from enforcing Rhode Island’s current ballot advocacy law, which restricted the ability of organizations to advocate on ballot questions. U.S. District Judge Ernest C. Torres invited all interested parties to file amicus curiae, or “friend of the court,” briefs. 

Common Cause board member Thomas R. Bender drafted a pro bono brief. He wrote that the current ban on groups “acting in concert” had been intended to prevent corruption in candidate elections, but the Board of Elections had improperly expanded the rule to outlaw such cooperation in ballot question campaigns. Bender emphasized that political action committees with clever names — far from revealing sources of support — actually confused voters. 

Former Supreme Court Justice Robert Flanders prepared a brief for the Rhode Island Foundation and United Way, attacking the state’s current ballot advocacy law as “fundamentally unfair.” He urged Judge Torres to declare a 1995 advisory opinion the Board of Elections had issued “unconstitutionally overbroad.” 

To most people ballot advocacy rules were mumbo jumbo, and few thought ahead about how to require disclosure rules. In 2005 the Board of Elections had proposed to replace its unenforceable ballot advocacy rules with a new reporting process for “ballot question advocates.” House and Senate committees had held hearings but buried the legislation. 

Rhode Island hurtled toward its 2006 election without any credible disclosure process for ballot advocacy. With the clock running, the Rhode Island Foundation’s director of strategy, Ari A. Matusiak, invited several nonprofits that were planning ballot advocacy campaigns to address the problem. Representatives of the Rhode Island Foundation, the United Way, Rhode Island Housing, the Right To Vote Coalition, the ACLU, and Common Cause met for lunch and formed a working group. “This is tough,” Matusiak said over sandwiches and coffee. “We need to untangle a real Gordian knot.” 

Attorney Howard A. Merten, who had filed the ACLU lawsuit, outlined a fundamental dispute: the ACLU sought to protect donors’ privacy and abhorred mandatory disclosure of donors to ballot campaigns, while Common Cause feared that streams of anonymous money would influence votes on constitutional amendments or bond issues. Steve Brown and I both believed the current ballot advocacy law was unconstitutional, but our groups differed sharply about how to fix it. 

The impasse lasted several weeks, until Michael V. Milito, an attorney for Rhode Island Housing, came to a meeting with a list of possible compromises. He used memos prepared by the ACLU and Common Cause to chart alternative ways to amend the unsuccessful 2005 ballot advocacy legislation. The most difficult issue involved thresholds for donor disclosure. Where current law required that campaigns disclose contributors who gave over $100 in a calendar year to any candidate, Milito suggested $1,000-per-year for ballot question donors. 

Brown and I struggled over the details but tested Milito’s compromises with our organizations. National ACLU and Common Cause leaders fired back withering criticism, but our state boards recognized the necessity of a middle path. The working group welcomed the proposed compromises, as did the Board of Elections. House and Senate sponsors introduced the new ballot advocacy legislation in mid-February 2006. 

 

Maureen Maigret ushered me into her office, a windowless room crammed with papers and books. It had a high ceiling but only three walls: one sidewall followed the curve of the Senate chamber wall above. As policy director for Lt. Gov. Charles J. Fogarty — whose only official duty was to step in if the governor were incapacitated — Maigret had no official power. In the last year of his second four-year term, Fogarty had nowhere to go but up or out. Pundits saw him as the Democrat most likely to oust first-term Republican Gov. Don Carcieri, but most predicted a tough slog. 

A savvy political operator, Maigret had served as a state representative from Warwick in the 1970s and 1980s, as Gov. Bruce Sundlun’s Director of Elderly Affairs in the early 1990s, and since 1998 on the staff of Lt. Gov. Fogarty — first as director of communications and then policy chief. “We’ve been drafting some reform legislation,” she said in a clipped Rhode Island accent. “We’d like your suggestions to make it the best it can be.” She slid a draft across her desk. “Charlie’s committed. He’ll do all he can to make this become law.” 

Its title held promise: “The Public Accountability and Reform Act of 2006.” Maigret worked at her computer while I paged through her draft, which included proposals to close loopholes in campaign finance, ethics, and lobbying laws. Several concepts were drawn from Common Cause bills that had died many times in House and Senate committees. One particularly pleased me: since the Ethics Commission’s meltdown in 2001, we lobbied without success for a law that would bar business associates of registered lobbyists from serving on the commission. I told her I liked it. 

“We thought you would.”

Other sections would improve ethics education, strengthen financial disclosure, and increase possible criminal penalties for ethics violations. Fogarty’s legislation created an extraordinary opportunity to enact genuine reforms. Democrats who ran the General Assembly despised Carcieri and might swallow this bitter medicine to help Fogarty win. Common Cause could not support Fogarty’s bid for governor, but we could play the role of honest broker on this legislation. 

Nearly everyone liked Fogarty and called him “Charlie.” The scion of a revered Irish-American political dynasty, his father had been in the state Senate before him, and his brother Paul currently served three northwest corner towns. His uncle John E. Fogarty had spent twenty-six years in the U.S. Congress, where he championed medical research and led in creating the National Institutes of Health. 

In several subsequent meetings, Maigret and I polished the bill and identified sponsors. House Majority Whip Peter Kilmartin and Sen. Mike Lenihan introduced identical versions of the legislation during the third week of February. At a press conference in the House Lounge, Fogarty described the cynicism many people felt toward public officials and declared it urgent that we “restore confidence in government.” 

Maigret had asked me to stand with Fogarty, Lenihan, and Kilmartin, as the lieutenant governor outlined his proposals for increasing transparency and accountability. The bill would broaden disclosure requirements under the State Vendor Disclosure program, which had been enacted after the RISDIC collapse. That law required contractors and vendors to file with their bids a list of their campaign contributions to statewide general officers. Fogarty’s bill would also require them to list contributions to members of the General Assembly. Another section would require lobbyists to report their campaign contributions as lobbying expenses. The legislation would require secretaries of state to monitor lobbyist reports and to publish annual reports on their expenses, gifts, and campaign contributions. These reporting requirements would bring to light details that often fell through the cracks. 

The bill would make relatives or law partners of lobbyists ineligible for appointment to the Ethics Commission, and anyone with an ownership interest or job in a lobbying business would also be barred. One section would require every “major state decision-maker” to participate in ethics training within six months of being sworn in, appointed, or hired. That requirement would take away the excuse of not knowing. 

Finally, Fogarty’s legislation would require state general officers to disclose more details of their income. Categories of disclosure would follow those for members of Congress: 

Less than $1,000

greater than $1,000 but no more than $10,000 

greater than $10,000 but no more than $25,000 

greater than $25,000 but no more than $50,000 

greater than $50,000 but no more than $100,000 

greater than $100,000 but no more than $200,000 

greater than $200,000 but no more than $500,000 

greater than $500,000 but no more than $1,000,000. 

 

During the press conference, a reporter asked whether my standing beside Fogarty constituted an endorsement. I answered that it did not. I said Common Cause never endorsed candidates for public office, but this was important legislation that deserved universal support. 

The prime sponsor in the House, Majority Whip Peter Kilmartin, would work to deliver the necessary votes. His sponsorship alone would help move the bill, and he clearly intended to burnish Fogarty’s reform credentials. 

 

I was disappointed when Kilmartin also filed a one-page bill to revoke the power of Carcieri or any future governor to place an advisory question on the ballot. 

On the House floor, before the gavel, I asked him why. 

“Fool me once,” Kilmartin said, “shame on you. Fool me twice, shame on me. Fool me three times?” He rolled his eyes. 

Almond had put separation of powers advisory questions on the ballot in 2000 and 2002, and huge majorities of voters approved. House leaders had clearly decided to take a political hit to prevent any future gubernatorial advisory questions. 

 

Five years had passed since Common Cause had gone silent on voter initiative, but backers of the process were not happy. Bob Flanders, who now served on our board, had become chairperson of the Voter Initiative Alliance. He and Operation Clean Government vice-chair Beverly Clay asked to address the board and seek its renewed support. 

Kevin McAllister had led the next phase agenda committee that studied our history and recommended staying silent on the issue. Now McAllister’s committee offered a formal resolution opposing voter initiative. Board members listened to both sides and discussed the arguments. Over several hours, four of the committee’s “whereas” clauses gained traction: 

WHEREAS experience has shown there is no practical or effective way to limit, control or otherwise regulate expenditures either for or against initiative campaigns; 

WHEREAS voter initiative has been used to undermine the rights and aspirations of minorities, and we believe no proposal for voter initiative can be crafted to protect against this possibility; 

WHEREAS voter initiatives tend to offer short-term, simplistic solutions to complex problems; 

WHEREAS no matter how carefully drafted and how sincere the motivations of its adherents, the various forms of voter initiative nevertheless contradict the fundamental American political system that was designed to temper the excesses of popular majorities. . . . 

These and other WHEREAS clauses gave rise to a resolution: 

THEREFORE, BE IT RESOLVED that although voter initiative can provide a mechanism for reform and bring about change in the status quo, the Common Cause Rhode Island State Governing Board believes that on balance, the pitfalls of voter initiative outweigh the benefits, and Common Cause Rhode Island opposes changes to the Rhode Island Constitution that would authorize a form of voter initiative. 

After years of supporting what political scientists called direct democracy, the state board — for the first time — reversed its previous position on an issue. 

 

On March 28, 2006, the House Judiciary Committee took up four pieces of voter initiative legislation, which Gov. Carcieri and House Republicans were making their cause célèbre. Rep. Nick Gorham, a stalwart ally in the campaign for separation of powers, sponsored the constitutional resolution and testified passionately. 

I had signed in to oppose voter initiative for the first time. Committee Chair Donald J. Lally called me immediately after Gorham. I passed out copies of the board’s resolution. “As some of you know,” I reminded the committee, “I helped write this legislation. For years, I came before you on behalf of Common Cause to testify in support of the very bills that we oppose today.” I explained why we were reversing our policy on a major issue: “In a whole series of states where voter initiative exists, majorities of voters have crushed affirmative action and gay rights. We in Common Cause have reached the painful conclusion that nothing we can draft will prevent similar abuses from happening here.” 

Bob Flanders testified after me that the clause we had drafted to prevent initiatives from abridging civil rights was clear and would be upheld in court. Witnesses who followed him differed sharply on the Common Cause reversal. Former critics praised us, while old allies in the Voter Initiative Alliance heaped blame. My face burned. I kept reminding myself of our motto: “No permanent friends, no permanent enemies.” 

Testimony continued until after 11:30 that night. As the tumult ended I had little doubt that voter initiative would die again in 2006. I left the hearing room feeling older, wiser, and humbled. I had carried out the will of the Common Cause state board, and years of experience had convinced me that this well-intentioned Progressive-era reform had outlived its usefulness. 

 

Democrats had more than enough votes to pass Peter Kilmartin’s bill revoking the governor’s power to place advisory questions on the ballot. Kilmartin assured his colleagues on the House Separation of Powers Committee that the current law was “a clear-cut issue of the executive branch exercising legislative powers in violation of separation of powers.” 

The governor’s deputy chief of staff, Jeffrey Grybowski, disagreed. “The placement of a question on the ballot is not a legislative power,” he insisted. “The governor’s placing of a nonbinding question on a ballot is not making law.” 

When my turn came, I testified that the public interest required some way to pose questions in areas where the legislature stonewalled challenges to its power. State voters had approved Almond’s 2000 separation of powers question by a 2 to 1 majority, and his 2002 question by more than 3 to 1. I said measurable expressions of the public will had prompted legislative action. Without voter initiative, Rhode Island should keep the governor’s advisory question process. 

Kilmartin swatted that argument away with an email from the National Conference of State Legislatures. A researcher wrote that she did not know any other state that allowed the governor to place questions on the ballot. The committee quickly recommended passage. 

On the very day the House was to debate Kilmartin’s bill, Carcieri upstaged legislators and raised the stakes by announcing that he had ordered two advisory questions onto the November ballot. The first would ask whether voters wanted a constitutional amendment to establish voter initiative; the second would ask about limiting increases in state spending and property taxes. 

From the House floor Kilmartin fired a salvo at Carcieri. “It’s very clever of him to propose two sexy political questions for the ballot,” Kilmartin declared. “He’s trying to legislate on the ballot.” By a vote of 50–17 the House rescinded the governor’s power. A week later the Senate followed suit, 23–7. 

Carcieri vetoed Kilmartin’s bill and scoffed at the charge that an advisory question intruded on the legislative process. “That claim is false,” Carcieri wrote. “Non-binding questions do not enact laws; they merely permit the governor to ask about matters of public concern” and allow voters to respond. 

Although both chambers easily overrode Carcieri’s veto, the drama continued. Kilmartin’s revocation bill included a standard clause that made it effective “upon passage,” but six weeks had elapsed since Carcieri formally directed Secretary of State Matthew Brown to place his two nonbinding advisory questions on the November ballot. Brown petitioned the Superior Court for a declaratory judgment: should he follow Carcieri’s order to place those two questions on the November ballot? Or did the veto override block him from following the order? 

Lawyers for the legislature and governor filed briefs in Superior Court. Carcieri noted that nothing in the act suggested that it could be applied retroactively. The General Assembly argued that because the ballot had not been certified, the power had not yet been exercised. Where would the courts come down? 

 

As spring brightened Rhode Island, Rep. Elaine Coderre led her committee in systematically restructuring boards and commissions to comply with the Separation of Powers Amendment. With counsel Michael R. Egan at her elbow, Coderre grappled with thirty-six boards, ranging from the Agricultural Lands Preservation Commission to the Retirement Board and State Traffic Commission. Employees, lobbyists, and activists trooped to the State House to seek special treatment. Coderre and her committee listened patiently, addressed technical issues, and coordinated their drafts with Senate leaders. Consistent with the amendment, they added Senate confirmation for members of three administrative bodies where legislators had never served. 

But House leaders resisted reconfiguring three major boards — the Coastal Resources Management Council (CRMC), the Narragansett Bay Commission, (NBC), and the I-195 Redevelopment Commission. 

Since 1995 Common Cause had targeted legislators and legislative appointees on the CRMC and NBC. The I-195 board, created in 2002, had been House Speaker John Harwood’s last such achievement before scandal toppled him. Its structure followed the traditional template: public members appointed by the speaker, Senate majority leader, and governor. The mayor of Providence would also name two, and the Providence Foundation, a business group, would get one. The question remained whether House leaders would finally agree to end legislative appointments on these three powerful public boards. 

On March 27, two Senate committees gathered in the Senate Lounge for a joint hearing on the CRMC. Sen. Susan Sosnowski chaired the Environment and Agriculture Committee, and Sen. Mike Lenihan led the Government Oversight Committee. Since CRMC’s creation in 1971, legislative leaders had appointed eight of the board’s seventeen members. When voters approved the amendment, Sosnowski resigned from her seat, and the other legislators followed. But four public members appointed by legislative leaders continued to serve. Early in 2005, Gov. Carcieri had named new members to fill the eight seats held by legislators and legislative appointees, but the Senate never held hearings to confirm or reject them. 

Witnesses before the joint Senate hearing described the CRMC’s history and mission. But conflict flared over its duties. Were its powers legislative or executive? 

Lawyer-lobbyist Robert D. Goldberg offered explosive testimony. He announced that the state Supreme Court had ruled in Westerly v. Bradley the previous summer — seven months after voters approved the amendment — that control of the coastline still belonged to the legislature. He read a key sentence from the decision: “Under the public trust doctrine, the General Assembly is vested with the authority and responsibility for regulating and preserving tidal lands and may determine appropriate uses for tidal land, grant tidal land to another, or delegate the authority to regulate that land on the state’s behalf.” 

Goldberg looked triumphantly at the senators around a circular glass-topped table. “That is as clear as it gets in the law,” he declaimed. “This is a clear definition from the Supreme Court — after all those amendments became law. The courts still recognized and declared that this is a legislative function.” 

I assumed that Goldberg’s wife, Justice Maureen McKenna Goldberg, had debriefed her role in this unanimous decision with him. 

Later, when I looked up the decision, I saw that Westerly had prosecuted a man for swimming in the Weekapaug Breachway, a channel where swift tidal currents raced between the Atlantic Ocean and Winnapaug Pond. The swimmer challenged the town’s jurisdiction, but the high court supported Westerly’s authority with a rhetorical flourish: “This ordinance is related directly to preserving the public peace, safety, comfort and welfare and is authorized by the town charter. Accordingly, the defendant’s contention that Westerly has no authority to prohibit swimming in the breachway is waterlogged.” 

Bob Goldberg’s testimony was waterlogged, too. The Supreme Court’s decision had focused on a Westerly ordinance. The swimmer had appeared pro se, without a lawyer. No one argued about or even mentioned the 2004 Separation of Powers Amendment. 

Earlier in the joint committee hearing, I had reminded the two committees that Rhode Island’s new appointments clause was adapted directly from Article II, Section 2 of the U.S. Constitution, which empowered the president to name all federal officials who execute federal laws. That became the template for Rhode Island’s Article IX, Section 5. “The test here,” I told the senators, “is not whether a board or commission may exercise legislative or even judicial power. The test is whether a public or quasi-public board ‘exercises executive power under the laws of the state.’ If it does, then the governor needs to appoint the members, subject to the advice and consent of the Senate.” 

Andrew Hodgkin, Carcieri’s executive counsel, followed me. He testified that the Coastal Council exercised executive powers whenever it issued permits, enforced laws, conducted hearings, promulgated regulations, or managed programs. Then he explained that its authority had rested on the “broad powers” clause, which had given the General Assembly unique powers until voters repealed it. “I think,” Hodgkin said, “residual powers stood for the proposition that the executive only had those powers the General Assembly saw fit to designate to the executive. That’s no longer the law in Rhode Island.” 

The next morning, Providence Journal reporter Peter Lord framed the CRMC question in the context of Goldberg’s tenacious drive to win approval for Champlin’s Marina to occupy much of Block Island’s Great Salt Pond. Lord reminded readers that political, economic and environmental interests were intense along Rhode Island’s priceless coastline. “But now,” he wrote, “political control of the one small state agency that regulates almost every waterfront activity has become extremely uncertain.” He described “a growing sense in the General Assembly that maybe it should retain control of the CRMC and not turn it over to the governor.” 

Robert Goldberg had gotten the last word with his comments about the Weekapaug Breachway case. So how widely had he peddled his line that — even after the Separation of Powers Amendment — the Supreme Court had reaffirmed legislative control of the coastline? How many who heard his spiel had bothered to read the decision? 

 

Construction crews had begun building a new intersection between I-95 and I-195. The “Iway,” as it was called, featured a 400-foot bridge with three graceful parallel arches. Vehicles still rumbled along the old roadway, over crumbling bridges buttressed with timber and iron, but bulldozers would soon start to clear the original right-of-way and open up more than thirty-five acres of prime land. 

House leaders were in no hurry to relinquish their control over platting and leasing the new land. Already, Johnson & Wales University officials had made a formal presentation to the powerful I-195 Redevelopment Board. The school’s senior vice president and its architect — ironically, accompanied by lobbyist Robert Goldberg — had made the presentation. They described “a campus-like group of buildings” with amenities including retail space. 

In February 2006, the leadership team of Speaker William Murphy filed I-195 legislation that purported to address separation of powers problems. The bill would transfer “state-owned property” to the I-195 board “for sale, lease or utilization pursuant to a public-private partnership, when the highway use shall be discontinued.” Yet despite authorizing major executive duties, the legislation made no change in the membership of the nine-member board. Legislative leaders would still control four of nine members, and they would provide meeting space. Furthermore, instead of sending their new I-195 bill to the Separation of Powers Committee, House leaders referred it to the Finance Committee, which scheduled a hearing for April 24. 

In response to an email alert, separation of powers advocates barraged members of the Finance Committee with emails and phone calls. I arrived at the committee’s basement hearing room prepared to argue that they must reconfigure the I-195 Redevelopment Board to comply with the 2004 Separation of Powers Amendment. Without explanation, the committee crossed the I-195 legislation off its agenda. 

I later saw Providence Mayor David Cicilline entering an elevator and slipped in behind him. I knew he was unhappy about our declaration that the governor must appoint all members of the I-195 Redevelopment Board. We stepped out of the elevator in the sub-basement, both aware that we needed to talk privately. 

Lobbyists and legislators flowed out of the elevators and down a low passageway toward an exit. Cicilline and I hung back in an alcove between enameled white brick pyramids that spread the weight of the dome. Both of us understood that without agreement on mayoral appointments, the I-195 legislation might be shelved. The mayor said he was troubled that Common Cause was opposing his appointments to the I-195 board. 

“Why exclude mayors?” Cicilline demanded. “I agree that there should be no legislative appointments. I supported separation of powers when very few others in this building would. I was one of your earliest sponsors.” 

“You were courageous,” I agreed, “and they punished you for that.” 

“I’m in an executive position now,” Cicilline insisted. “I should be able to make appointments that affect my city.” 

“I’m sorry,” I said. “No one meant to exclude you. The bipartisan drafting team overlooked the question of mayoral appointments. The best we can do now is to write into law that the governor must ‘give due consideration’ to your recommendations.” 

Cicilline shook it off. “We need to fix the appointments clause.” 

“Too late,” I said. “I told you that we missed it. But you missed it, too. All through the spring of 2003 you were mayor, and there were lots of hearings, but no one from your office testified that the amendment should be revised to allow mayors to make appointments to boards like this.” 

Cicilline and I walked in silence toward the exit. Outside, in April sunshine, his official car and driver were waiting. He climbed in. We had not resolved the impasse or even agreed what came next. 

As his black car with the license plate “City 1” rolled out of the legislators’ parking lot I pondered his political rise during twelve years since he told me he intended to run for a seat in the House. He had worked hard on ethics legislation and introduced the first resolution to put a separation of powers amendment on the ballot. Through all the defeats and setbacks, the amendment had only grown stronger. Now that it was implanted in the Constitution, he felt whipsawed by an unintended consequence, while I felt great urgency to implement the amendment, not change it. 

 

House leaders seemed equally determined to keep the Narragansett Bay Commission beyond the governor’s grasp and under local control. Elaine Coderre had introduced legislation that recast the state’s sewage treatment agency as a “regional commission” rather than a state agency. She proposed to cut the board from twenty-three members to nine. No longer would the speaker and Senate president name two members each, nor would the governor appoint ten public members. Instead, the mayor of Providence would pick two members of the board and the chief executives of Central Falls, Cumberland, East Providence, Johnston, North Providence, and Pawtucket would each choose one. 

Throughout the spring, Save the Bay, the Conservation Law Foundation, the Environment Council, and Common Cause all lobbied Coderre and her committee against this plan “to regionalize” the commission. Since 1970, Save the Bay had been fighting pollution in Narragansett Bay and its watershed, attacking the flood of industrial wastes and raw sewage that poured into the estuary and its tributary rivers. Bumper stickers on countless cars carried the organization’s three-word name and message in white letters against a bold red background — SAVE THE BAY. Save the Bay delivered data to policy-makers, conducted education programs for children, backed bond issues for sewage treatment facilities, managed annual swims across the bay, and had filed a lawsuit that prompted creation of the Narragansett Bay Commission in 1980. 

Save the Bay lobbyist Jane Kenny Austin pressed the case that the NBC had a statewide mission. She wrote to policy-makers that the NBC board, “should continue to reflect a cross section of Rhode Island citizens,” not merely sewage-producing cities. Downstate communities also had a large stake in the health of Narragansett Bay. Furthermore, the Bay Commission’s plants in Providence and East Providence treated thirty-two billion gallons of wastewater each year. She wrote: “As the largest discharger into the Bay, the performance of NBC is of critical interest to all of Rhode Island.” Furthermore, its Combined Sewer Overflow project — a system of tanks and tunnels being blasted out hundreds of feet below ground — was the largest public works project in Rhode Island’s history and was funded with state bonds. Austin argued that the commission affected the entire state, and its integrity depended on a broadly representative statewide board. 

The House Separation of Powers Committee listened to unanimous testimony from environmental and reform organizations against regionalizing the Narragansett Bay Commission, but on June 14, it recommended Coderre’s bill to the full House. 

A week later Gov. Carcieri trumpeted the alarm at a State Room press conference, where Cynthia Giles, director of the Conservation Law Foundation in Rhode Island, stressed the absurdity of regionalizing. “The sewage pipes of the Narragansett Bay Commission may not cover the entire state, but its decisions certainly do,” Giles declared in a voice that would have filled the room without a microphone. “If the health of Narragansett Bay isn’t a matter of statewide interest, it’s hard to imagine what is.” 

Carcieri emphasized the sewage agency’s statewide financing. Rhode Island was still paying off $33 million in outstanding bonds, and debt service alone for the fiscal year beginning July 1 would be $1.5 million. I argued that the bill relied on “sheer revisionist fantasy,” as if twenty-five years of the commission’s history as a state board could be compressed into a regional project. “Leaders of the House,” I said, “seem determined to try an end-run around the Separation of Powers Amendment.” 

Rep. Jim Davey announced that he would propose an amendment on the House floor to reconstitute the Bay Commission with twelve members. Nine would come from the communities whose residents paid sewage bills, and three at-large from the rest of the state. Mayors of rate-paying communities would present lists; the governor would give “due consideration” and make the appointments; the Senate would confirm members of the new board. 

 

On April 25, U.S. District Court Judge Ernest Torres cited three U.S. Supreme Court decisions — which he labeled Buckley, Bellotti, and Berkeley — as he struck down key elements of Rhode Island’s Ballot Advocacy Law. He overturned the law’s ban on corporate contributions to ballot question campaigns, its limit on the amounts individuals or corporations could contribute to ballot campaigns, and its prohibition against groups “acting in concert” or coordinating expenditures on ballot campaigns. Torres barred the Board of Elections from enforcing those sections of the law. But he also affirmed the state’s interest in requiring disclosure of contributions: 

Unlike expenditures, which pass directly from the party making them to the vendor of the goods or services being purchased, a contribution may pass through many hands before being expended for its ultimate purpose. Consequently, unless contributions are reported at each step along the way, the true source of the funds may be concealed from public view.

Two days after the Torres decision, I bumped into Christopher Boyle at the State House’s main security checkpoint. The son of a federal judge, Boyle had been House majority whip when I first met him. After he decided not to run for re-election in 1992, we served together on the Blue Ribbon Commission on the Future of the General Assembly. Like numerous other legislators from the 1980s, he had caught the wave of generous legislative pensions and returned to the State House as a lobbyist representing Newport Grand, one of two vast video slot parlors in Rhode Island. Both were fighting to block casino bills that would open their market to Harrah’s Entertainment or Trump Casinos. 

Although the courts had knocked the 2004 Harrah’s casino amendment off the ballot, the enabling statute remained in state law. Its special rules for gambling referenda were fraught with problems but remained in full force. 

As often happened at the State House, all sides referred to the section simply by its number in the Rhode Island General Laws: 17-25.1. Newport Grand and Lincoln Park needed to rescind the statute, and Boyle said they wanted the repeal inserted into our ballot advocacy legislation. 

Civil War cannons on either side of the high marble vestibule pointed toward the center where Boyle and I stood. I feared that our delicately balanced ballot advocacy legislation would get shredded in the crossfire between the gambling behemoths. Although the House Judiciary Committee had already approved our legislation, Boyle had been lobbying the House and Senate sponsors to add the repeal of 17-25.1 as a floor amendment. During two weeks when our bill should have been debated and passed, it had been postponed a half-dozen times to the next day’s House calendar. I asked Boyle if he had anything to do with the delays. 

He shrugged in a knowing way. “Don’t you think any rewrite of the ballot advocacy section also needs to repeal the section on gambling referenda?” 

“It’s a separate section of law, Chris. We think any repeal should go forward as a separate bill.” 

“Why not as part of your legislation?” Boyle demanded. 

"Because some of the organizations in our working group can’t take positions on gambling referenda.” I explained that the ballot advocacy coalition — which now included the Rhode Island Foundation, Rhode Island Housing, United Way, University of Rhode Island, Family Life Center, ACLU, and Common Cause — had resolved difficult issues in our legislation, which was poised to become 17-25.2. Most of our nonprofit institutions had no reason or authority to take positions on gambling referenda in a separate section of state law. 

“You mean Common Cause doesn’t care about the rules for gambling referenda?” 

“Of course, Common Cause cares,” I said. “But we’re part of a coalition that can’t jump into your fight over casino gambling.” I suggested that he call Ari Matusiak at the Rhode Island Foundation or leaders of the other groups I had mentioned. 

As we parted, he leaned close and whispered that the only way 17-25.1 could be repealed was with passage of 17-25.2. “And, without the repeal of 17-25.1 your bill won’t become law.” 

I emailed the ballot advocacy coalition about the impromptu conversation, including Boyle’s threat. Reminding them that he had served as majority whip and knew the game, I warned them to expect his call. 

Two weeks later, Boyle distributed a five-page memo to the entire General Assembly. “Common Cause and the Rhode Island ACLU,” he wrote, “have turned a blind eye to the implications of not addressing gambling referenda and have, therefore, served up legislation that contains cherry-picked reform.” With bold caps and multiple exclamation points, he wrote: “PENALTIES — The penalty for failure to register with the government? A person who fails to comply with Chapter 25.1 is guilty of a FELONY!!! (17-25.1-2).” 

His final section began with a rhetorical question in bold type: Why had Common Cause and the ACLU “fought full ballot question reform?” Boyle added that his organization, the Rhode Island Hospitality and Tourism Association, was “deeply disappointed in the ‘ostrich-like’ approach of Common Cause and the ACLU.” He made no mention of the charities, foundation, housing agency, and university that he knew also comprised the working group. 

Boyle’s attack on the ACLU and Common Cause also ignored the fact that he and his clients had not bothered to express their concerns in response to Judge Torres’s request for amicus briefs. Nor had he testified on the ballot advocacy legislation during a Senate Judiciary Committee hearing the day after Torres ruled. Nonetheless, in the weeks that followed it became clear that Boyle and his backers had enough clout to sabotage our bill. 

Meanwhile, Harrah’s lobbyist Terrence M. Fracassa — although at odds with Boyle on casino questions — also pushed to insert the repeal of 17-25.1 into the ballot advocacy bill. Boyle and Fracassa forced a new round of negotiations, this time over whether Boyle’s Rhode Island clients could agree with Fracassa’s Las Vegas employers on rules to govern campaigns for or against a Rhode Island casino. As chair of the Senate Judiciary Committee and prime sponsor of ballot advocacy legislation, Sen. Michael J. McCaffrey brought all the parties into his corner office on the third floor to thrash out our differences. As was his style, McCaffrey directed us to find a solution we could all live with and come back to him. 

On the House side, leaders had placed all the responsibility for sponsoring the election agency’s legislation on freshman Rep. Edwin R. Pacheco. Pacheco was smart and eager to resolve problems. Though he had neither portfolio nor office, he had met with the working group to probe our disagreements and press for solutions. 

Several weeks of tense negotiations produced a new “gambling referenda” section that required disclosure by contributors of who gave $1,800 or more to advocate on gambling in any two-year election cycle. Reports were to reveal whether the contributor had “any direct or indirect affiliation” with any promoter of gambling “in any jurisdiction and, if so, the name of such facility or entity.” The new text deleted the dysfunctional portion of 17-25.1 and piggybacked the revised section onto our newly drafted 17-25.2, entitled the “Ballot Question Advocacy and Reporting Act.” 

The final substitute versions of 17-25.2 accomplished what our working group intended. It removed sections of the current law that Judge Torres had ruled unconstitutional, defined “ballot question advocate” as anyone who spends $1,000 or more in a calendar year to advocate on a particular ballot question, and created rigorous disclosure requirements for ballot advocates, whether individuals, nonprofit groups or corporations. It also outlawed contributions under false names “or in any manner for the purpose of disguising the true origin of the contribution.” 

The substitute bill prohibited the formation or use of legal entities to advocate for or against a ballot question that would disguise the “true origin of the funds” or evade the reporting requirements. 

Finally, it empowered the Board of Elections to enforce the new law and established penalties for violators up to triple the dollar amount of contributions or expenditures made in violation of the law or not reported. 

With these compromises, those who had been working for many months hoped for smooth passage through the Senate and House. The Senate passed McCaffrey’s substitute version at the end of May with a unanimous vote, but House debate turned raucous. I watched from a gallery above, as Minority Leader Robert A. Watson moved to recommit Pacheco’s bill to committee and thereby kill it. His Republican caucus and dissident Democrats had apparently decided to defy the leadership over this bill. The House rejected Watson’s move to recommit, 33–17. 

Rep. Rene R. Menard then offered two amendments that would have affected candidate elections but not ballot advocacy. Like Watson’s motion to recommit the entire package, Menard seemed intent on scoring political points. Pacheco debated, and a majority crushed Menard’s amendments in successive votes. 

Pacheco’s bill passed with a final vote of 63–1 and flew to the Senate, where it won unanimous approval and went to Gov. Carcieri, who signed both Pacheco’s House version and McCaffrey’s Senate twin into law on July 3. 

Rhode Island’s new Ballot Advocacy Law provided no dramatic advance, but it did create enforceable rules for the fall’s ballot questions. Nonprofits could campaign without fear of breaking the law, and voters would at least know who paid for the casino ads. 

 

Broad-shouldered, tall, and tenacious, Narragansett Chief Sachem Matthew Thomas had spent the spring of 2006 promoting the casino. He reminded lawmakers that governments — federal, state, and local — had often betrayed his people. A 1996 amendment to the federal Indian Gaming Regulatory Act had thwarted the tribe’s plan to build a casino on its 1,800-acre reservation in Charlestown. It left the Narragansetts as the only federally-recognized tribe barred by U.S. law from operating a casino on their tribal land. 

In 2003, frustrated tribal leaders had begun selling cigarettes at a tax-free shop on tribal land. Their business grew until Gov. Carcieri ordered the operation closed down. State troopers came in force, and members of the tribe fought back. The raid brought injuries, arrests, and humiliation that evoked bitter memories from Rhode Island’s history. Those disappointments propelled the Narragansetts toward their partnership with Harrah’s Entertainment and the 2004 West Warwick casino proposal, which the General Assembly approved but the Rhode Island Supreme Court disqualified. 

Again in May 2006, Matthew Thomas and top Harrah’s officials made the tribe’s case before the House Finance Committee. The constitutional amendment under consideration, a newly revised version of Timothy Williamson’s legislation, stated that the casino would be privately owned and operated by a new corporation established under Rhode Island law by “the Narragansett Indian Tribe and its chosen partner.” The revised amendment no longer mandated a gaming commission with legislative appointees or specified a tax rate. The resolution required it to appear on the ballot as the first referendum question and as a result, would bump our Voting Rights Amendment to second place. 

The Finance Committee recommended Williamson’s legislation to the full House, but Thomas told reporters it was only “round one.” He added that the years had taught him “never to count any chickens before they hatch in Rhode Island.” The governor blasted Finance Committee members for casting “a momentous vote on a bill they had seen only moments before.” He added: “Voting to approve this amendment without that critical information was breathtakingly irresponsible and could put the state at great financial risk.” 

During House debate two days later, Nick Gorham pushed an amendment to bar legislators and general officers from receiving “any remuneration” from business interests related to the casino during their terms in public office and for five years afterward. Although this might have kept lawmakers out of commercial gambling, red lights swamped green on the board, defeating Gorham’s amendment 44–25. 

Steven R. Ucci of Johnston then moved to delete specific references to West Warwick and the Narragansett Tribe. He proposed new constitutional language to permit a single resort casino whose operator would be “selected by a competitive process” and “subject to regulation and taxation by the State of Rhode Island.” Ucci’s motion forced the House to vote up or down on competitive bidding, which a House study panel had recommended three years earlier, but that motion was crushed. 

Rep. James F. Davey then proposed to change the requirement that the casino amendment become “the first referendum question,” ahead of the Voting Rights Amendment. Davey’s proposal went down by a vote of 46–23. The vote counts established a pattern, and the final vote for passage tallied 44–28. 

During Senate debate on June 1, Sen. Joseph M. Polisena of Johnston offered the same competitive bidding amendment, which was narrowly rejected, and final passage in the Senate came by a vote of 23–13. 

Williamson’s strange casino package went to the ballot as Question 1. How much would Harrah’s spend to win? Would a promise of constitutionally mandated property-tax relief sway voters, or would the empathy many felt for the Narragansetts translate into pro-casino votes? 

 

Though the Right To Vote Amendment was on the November ballot — now as Question 2 — the campaign still needed action on Joe Almeida’s Restoration of Voting Rights Act, which would enable the Department of Corrections, secretary of state, and other agencies to begin registering former prisoners after state voters approved the constitutional amendment. Despite continuous lobbying, Almeida’s legislation seemed stuck in the House Judiciary Committee. Our Right To Vote Coalition, now comprising more than fifty groups, again deluged lawmakers with calls to pass the legislation. 

Almeida’s bill finally popped up on the House Judiciary Committee’s agenda for June 20, and the committee approved it with little discussion. Two days later, the full House passed it, 64–6. Senators had approved identical legislation a year earlier and quickly did so now. Gov. Carcieri, who had never supported the idea of restoring the vote for prisoners, allowed it to become law without his signature. 

Now that we had run our legislative gauntlet — getting the amendment onto the ballot, enacting a workable ballot advocacy law, and finally passing the enabling statute — a huge question remained. Could we persuade Rhode Island voters to restore the vote for ex-convicts that many feared and shunned? 

 

Diana Kelly had been associate director at Common Cause for more than two years. But administrative duties consumed her time. On June 23, probably the last day of the 2006 session, she went with me to the State House for the first time. 

We found the broad brick and marble plaza outside the main entrance mobbed. Hundreds of staff members, lobbyists, legislators, and reporters spilled quickly into broiling sunshine. The brick sidewalks on both sides of Smith Street filled up with clusters of people. Police cars blocked the cobblestone drive, and sirens wailed. 

A bomb threat had been phoned in. It might be a hoax or real, and the entire State House was being evacuated. Senate Majority Leader Teresa Paiva Weed stood on the north side of Smith Street in a blazing salmon-colored dress. Near her, a senator in a bright red shirt with white suspenders had left his jacket inside. Stan Israel, the lightly bearded head of SEIU Local 1199, sported a ponytail, sunglasses, and a Panama hat. As cell phones and cigarettes sprouted in the crowd, a black-suited SWAT team raced toward the entrance with automatic weapons. K-9 units appeared, and handlers rushed their dogs toward the huge oak doors. 

As the bomb search stretched to a half-hour, black SUVs loaded up and left for Patrick’s Pub, a political watering hole a few blocks west of I-95. Those of us who stayed found shade under trees outside the Department of Administration. 

I used the time to lobby senators for a piece of crucial legislation that was not scheduled for a vote: Lt. Gov. Charlie Fogarty’s Public Accountability and Reform Act of 2006. The House had passed Kilmartin’s slightly amended version a week earlier and sent it to the Senate. Now it was stuck in the Senate Judiciary Committee with Mike Lenihan’s companion bill, which had been held for further study two months earlier. Had I been wrong in thinking Democrats would pass it to boost Fogarty’s chances of becoming governor? 

“I’ll bring it up with leadership,” Lenihan told me. He had been out sick but returned on this chaotic last day. Several other senators were not aware that Fogarty’s legislation had disappeared and promised to ask Judiciary Chairman Mike McCaffrey. 

When police declared the State House safe, a tide of agitated people flowed back in, slowed by a bottleneck through security. 

“So you’re retiring?” A legislative staff member appeared at my side. “Have they got a replacement?” 

“Not yet,” I said. “The search committee was reviewing résumés this morning.” 

“So what’s the pay?” he asked, openly interested.

I brushed off the question.

“Above fifty thousand?” he persisted.

“Yes,” I said, “but that would depend on skills and experience.” 

After he left, Kelly said she would not have given him any figure. 

I asked what she would have told him. 

She chuckled. “I would have said: ‘If that’s your first question, this is not the job for you.’ ” 

I was relieved when Senate Judiciary met in haste and recommended Fogarty’s bill for passage. The final version would allow citizens to see more clearly than ever before the flow of funds from special interests to public officials. It would require general officers and candidates for the five statewide offices to start disclosing their outside income in nine brackets — less than $1,000, between $1,000 and $10,000, between $10,000 and $25,000, and so on, as members of Congress were required to do. The legislation would also bar appointment to the Ethics Commission of anyone who worked for or had any ownership interest in businesses that derived income from lobbying. 

Both the House and Senate versions went to the Senate floor and passed with unanimous 35–0 votes. When the Senate version flew back to the House for final passage, representatives approved it 59–6. I reminded myself to congratulate Fogarty and his policy director, Maureen Maigret, for delivering a package of substantial reforms. 

 

The 2006 session ended with a bang and a whimper over separation of powers. For reasons only they knew, House leaders moved to recommit Coderre’s bill for a regional Narragansett Bay Commission to her committee. The House Finance Committee never recommended any action on the I-195 Relocation Commission. Without action, those two powerful boards and the Coastal Resources Management Council would still not comply with the Separation of Powers Amendment. 

House leaders waited until the maelstrom of the last hours to launch a stealth attack. On May 31, Coderre had quietly filed a bill that proposed to delete the entire existing law on the CRMC and then reenact it, word for word, under a slightly changed chapter number in the Rhode Island General Laws. Instead of appearing as 46-23, it would become 46-23.3. Coderre’s committee never conducted a hearing on her reenactment, and I thought it had died. 

Then, on the final day of the session, Coderre filed a resolution asking the Rhode Island Supreme Court for a written advisory opinion, citing her strange CRMC repeal and replacement bill. Her committee met without notice and sent the advisory opinion request to the floor “with a recommendation of passage.” 

Coderre’s resolution asked the justices to answer four distinct questions: Would the proposed reenactment with legislators listed for appointment to the CRMC violate the “so-called Separation of Powers Amendment?” Could the speaker of the House appoint members of the CRMC? Was the “so-called Separation of Powers Amendment” self-executing or did it require legislative implementation? And was the CRMC “by its nature, purpose, and operation” a legislative body? 

These questions were disturbing — as if there had been no decade-long debate, and as if a huge percentage of state voters had not already approved the amendment. After three years of claiming they supported separation of powers, House leaders brought the reactionary resolution to the floor after midnight on the last day of the session. Although exhausted and dazed, representatives engaged in a perfunctory debate and then approved Coderre’s request for an advisory. 

The night air smelled of rain when I left the State House for the last time as lobbyist for Common Cause. I had hoped to retire with the separation of powers struggle settled, but fierce resistance remained. Instead of obeying the plain language of the amendment, House leaders were clearly launching a new battle. Had they believed John Tarantino’s memo? Bob Goldberg’s testimony? Would the Supreme Court trample our carefully crafted amendment? How much would this new legal battle cost? Could it be resolved in only five months before my retirement? 

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