Richard S. Davis: Ethics rule restricts legislative leadership

Fourteen years ago, Linda Smith, then a Republican state senator, spent the fall campaigning vigorously for Initiative 601, a tax and expenditure limit that she’d introduced unsuccessfully in the previous legislative session. Smith energized a large group of followers known as “Linda’s Army.” That fall their collective efforts propelled I-601 to a narrow victory. The initiative bound state budgets for nearly a decade thereafter.

I was reminded of Smith’s achievement last week when a small debate I’d wanted to see was canceled. One of the participants, Rep. Doug Ericksen, R-Ferndale, said he believed that his participation could trigger an ethics complaint. You see, he would be relying on staff analysis to make his case. Of course, I thought, so what? The Legislature invests in capable staff to help lawmakers reach a deeper understanding of public policy. It doesn’t always work, of course, but the concept has considerable merit.

Use of staff work to advocate for or against a ballot measure, however, violates the ethics board’s interpretation of legislative ethics laws. At the crux is this line from the Legislative Ethics Manual: “Public Officials enjoy free speech when it comes to ballot measures as long as they are not using public resources.” Legislative staff members and their work product are, not unreasonably, considered public resources. Under current rules, Smith’s campaign would have faltered at the gate.

The “free speech” public officials enjoy is a peculiarly constrained conversation. For example, consider the proposed constitutional amendment (EHJR 4204) to allow school levies to pass with a simple majority vote rather than the current 60 percent requirement. The issue has been debated for years, with legislative proponents and opponents gathering reams of information from partisan and nonpartisan staff experts.

In floor debate, it’s ethical and expected that lawmakers will use staff analysis and talking points in preparing their remarks. But once an issue becomes a ballot proposition, use of those same documents to advocate for or against the measure constitutes an ethical violation.

Oddly, if a citizen obtained those documents through a public records request or downloaded them from a state Web site, he could use the information directly for campaign purposes. So once the legislative session has ended, legislators have less ability to campaign effectively than ordinary taxpayers, even on issues like the simple majority that have reached the ballot through legislative referral.

Ericksen points out that the intent of the law, which was beefed up considerably in the 1990s to control rampant taxpayer-subsidized politicking by legislative staff, is to “create a firewall between taxpayer dollars and campaigns.” Fine, but that firewall has become a murky veil of ambiguity and contradiction. Consequently, an overabundance of ethical caution silences too many legislators whose voices might make a difference in voters’ evaluation of ballot issues. Some lawmakers may welcome a convenient excuse to duck difficult debates, but others, like Ericksen, justifiably chafe at the muzzle.

Aggressive, personal campaigning invigorates politics. Although we see it rarely, a sharply political debate between two informed advocates can be both educational and entertaining. Instead, our national politics these days has degenerated to serial soundbites delivered by a stageful of look-alike, sound-alike candidates trying to avoid career-killing candor. Political debates now spark the conflicted feelings we bring to other high-risk spectator sports (think NASCAR, boxing or rodeo): No one wants to see a calamity, but the possibility adds to the excitement.

At the state level, initiative and referendum campaigns have too often become contests led by hired guns and special interests, with little legislative participation. As ballot propositions increasingly shape public affairs, leadership is sorely needed.

If legislators feel strongly about the measure, they should be free to join the debate using the best information available, including staff analyses. (Obviously, taxpayers should not be paying for campaign-related mailings and advertising.) Simply, legislators should face no greater restriction on their use of public resources in ballot measure campaigns than they do in addressing similar issues during the legislative session. It’s time to clarify and revise the law so that lawmakers can actively campaign without fearing the ethics police.

Or have we reached the point, as some suggest, where it’s unethical for legislators to show political leadership?