Punishing Corruption In Politics

William J. Jefferson was a Democratic Congressman from New Orleans. He is African American.

He was prosecuted following an investigation by the FBI (in an investigation that spanned a Republican and a Democratic Presiential administration) for corruption charges during his term of service. The trial took six weeks and the jury deliberated for five days. Prosecutors alleged that "from 2000 to 2005, Mr. Jefferson sought hundreds of thousands of dollars in bribes from a dozen companies involved in oil, communications, sugar and other businesses, often for projects in Africa. . . . [he] used his position as a member of the House Ways and Means trade subcommittee to promote the companies’ ventures . . . . [he] actually received less than $400,000[.]"

He was convicted in a federal court in Virginia yesterday of 11 of 16 counts of "bribery, racketeering and money laundering. He was acquitted of obstruction of justice and violating the Foreign Corrupt Practices Act, which makes it illegal to bribe foreign government officials." He is 62 years old, and the federal guideline sentence for his crime is more than 20 years.

He lost his bid for re-election in 2008, largely because the case was pending. But, the House did not expel him, which it had the power to do with a two-third majority, and he did not resign from office.

The fact that the FBI found $90,000 that had been delivered to Jefferson as bribe money in his freezer wrapped in aluminum foil doesn't say much for the banking practices of the member of the House Ways and Means Committee, which writes the nation's tax laws.

The case also made constitutional history on a separation of powers issue:

F.B.I. agents raided Mr. Jefferson’s Congressional office in May 2006, the first time the bureau had searched a Congressional office. The raid was denounced by lawmakers in both parties who said that the Justice Department, through the F.B.I., had committed an unconstitutional intrusion on Congressional independence.

A federal judge upheld the raid, but an appeals court ruled that it was constitutionally flawed and that some documents should be returned to Mr. Jefferson. The Supreme Court let that ruling stand.

In my view, this is a case where the system worked. The FBI's director is appointed for a fixed term; he does not serve at the pleasure of the President. This insulated key investigations of national importance form political meddling. A genuinely corrupt politican was convicted of crimes for his conduct after a thorough examination of the case at trial by a jury.

Corrupt politician should be prosecuted, regardless of party. The federal system has a bias towards trying to unstate misconduct by members of your own political party, because incumbents are usually easily re-elected, while open races tend to be more competitive. But, criminal and ethnical misconduct undermine the quality of governance and may candidates unelectable.

I personally believe that the Democrats would have been wise to get behind a proposal to expel Jefferson from the House themselves before the 2008 election. I also favor the Colorado system, where an individual legislator's resignation, removal from office or death leads to a partisan vacancy committee appointment that doesn't change the balance of power, rather than putting the partisan balance of the body as a whole at stake. In individual's personal flaws don't mean that his or her constituents favor the politics of the other party. The U.S. has long recognized this in the Presidency, where we moved to the joint election of the President and his understudy, the Vice President, long ago.

I am not a big fan of the criminalization of politics. Campaign finance laws and laws concerning the conduct of campaigns shouldn't be crimes, even though sometimes they are appropriate and should carry penalties. Criminal libel laws likely shouldn't exist, even if there is a role for narrow constitutionally bound civil defamation actions (although I have doubts about rare cases that are direclty political, such as a recent candidate-candidate defamation judgment in Nevada).

But, this doesn't mean that we shouldn't be vigilant in prosecuting abuse of political offices for personal economic gain.

Indeed, I support the basic idea that most voters thought that they were backing when they enacted Colorado's Amendment 41. This idea was that state elected officials and senior political appointees should not be allowed to receive gifts unless it is clear that they would have been given even if the person did not hold public office, and that gift giving to elected officials and senior political appointees should not be a permitted part of our political culture.

The need for a citizen initiative to regulate state elected official's ethics was clear. They face a conflict of interest if they are asked to regulate themselves. But, flaws in the drafting of Amendment 41 led its backers to take a position, ultimately accepted by the courts, that implausibly read the Amendment so that its gift ban scope was almost entirely duplicative of the state's criminal bribery laws, rather than constituting the true gift ban that was intended.

Amendment 41's problem was not that it contained a gift ban, but that the gift ban was overreaching. Amendment 41 included governmental bodies like public universities and local governments, which the state legislature was in a good position to regulate without facing a conflict of interest. Likewise, Amendment 41 inexplicably covered all employees of state government, rather than leaving employees within the civil service system, who face an entirely different regime designed to insulate them from improper political pressure, alone. Article XII, Section 13 of Colorado's Constitution, establishing the state personnel system, leave the ranks of political appointees in Colorado very thin.

The only state employees who are exempt from the personnel system in the excutive branch are:

1. State elected officials

2. Constitutional state officers not otherwise identified, including up to twenty department heads.

3. The Governor and Lieutenant Governor's offices whose functions are confined to the administration of those offices.

4. Deputies the Secretrary of State, State Treasurer and Attorney General, and attorneys at law service as assistant attorney general.

5. Employees of the legislative and judicial branches.

6. Members of board and commissions including: the Public Utilities Commission, the Industrial Commission, the State Board of Land Commissioners, the Colorado tax commission, the State parol board, the state personnel board and other boards and commissions compensenated solely upon a per diem and expense reimbursement basis.

7. Faculty members and senior administrators of educational institutions and other "departments not reformatory and charitable in character" (e.g. state hospitals).

8. Students and inmates.

Amendment 41 could easily have exempted people in the state personnel system, and people in categories 7 and 8 above, and could easily have narrowed the circumstances in which family members of covered people were considered to be within the scope of the gift ban. There is no evidence of pervasive and worrisome corruption in Colorado by personnel system employees, at state colleges and universities, and in state hospitals.

This would have exempted something on the order of 97% of the people covered by Amendment 41, and even a narrower net would have been effective to deal with the perceived problem.

Making the de minimus exception to the ban of $50 apply to lobbyists (for whom there is no exception) perhaps on a per year basis, to prevent a daily parade of small gifts, would have eliminated more of the silly side of the law, which technically prohibits brief car rides or free tissues offered by lobbyists to leigslators if read literally.

Requiring covered people to reimburse the state for, or give to the state gifts received by these officers, which is how the gift ban in the federal executive branch works, would be a non-fault seeking, narrow inquiry that could keep government clean without the destructive inquiries that go into bribery cases, which even when blatant, as in the Jefferson case, take immense resources.

Private benefit from public office is a path to corruption. But, unless it rises to the kind of quid pro quo of taking public acts for private gain in a way that can be traced, is less search inquiry with non-punitive consequences makes more sense.

Secret Meeting Tapes To Be Released

The Colorado Independent Ethics Commission is the board charged with enforcing Amendment 41, which on its face, prohibits public servants in Colorado and people closely related to them from accepting most gifts. The idea is to increase transparency and reduce undue influences from lobbyists and other special interests. Amendment 41 has been construed by the Colorado Independent Ethics Commission and the courts, however, to be a mere civil bribery ban, because a nexus with a potential to influence official conduct has been implied into the law.

The overwhelming share of the Colorado Independent Ethics Commission's business (about 85%) takes place in closed sessions. The Commission's five members are appointed by the governor, both chambers of the General Assembly, the Colorado Supreme Court and the commission itself.

The Colorado Independent, an online magazine that does original reporting (full disclosure, it is a successor to Colorado Confidential, for which I used to work), sued to get fuller disclosure of those closed sessions.

It won its lawsuit filed pursuant to the Colorado Open Meetings Law. Now, as a result, meeting audiotapes will be released. Disclosures of the matters to be considered in executive sessions have also become far more detailed, in part due to litigation by Colorado Ethics Watch, a public advocacy group focused on transparency and political ethics, which has also been a key player in litigation over the Colorado Independent Ethics Commission, and has a good working relationship with the Colorado Independent.

The commission isn't pleased:

"The commission was very upset by [Denver District Judge Norman] Haglund’s decision,” said executive director Jane Feldman during testimony Friday on the open meetings lawsuit, “and there have been discussions about seeking changes in legislation because they are very concerned about confidentiality.”

The commission has "argued the commission is forbidden by law from releasing any discussions about complaints alleging ethical misconduct later dismissed as “frivolous,” and the names of people — usually lobbyists — who ask for so-called letter rulings on ethical questions. The commission also wants to keep under wraps instances when its attorneys offered legal advice, though in many cases [the commission's lawyer] simply stopped the recording during those discussions."

How proceedings that take place almost entirely behind closed doors can enhance public confidence in legislative ethics is a problem that the commission hasn't offered an answer to. The fear, of course, is that secret meetings could be used to hide corruption or political bias. The commission does have good company. The vast majority of judicial complaints, for example, are also handled privately.

Colorado's Independent Ethics Commission

Colorado voters passed an initiative commonly known as Amendment 41, best known for its "gift ban." The gift ban is supervised by an independent ethics commission which now exists and has a website. On the website were various tea leaves, some interesting, that I recite here with a minimum of commentary.

* From the minutes of the January 14, 2009 meeting:

The Commission met in Executive Session from 11:55 a.m. to 4:20 p.m.

III. GENERAL BUSINESS
The Commission returned to Open Session at 4:20 p.m.

1. It was moved, seconded and passed unanimously to dismiss Complaint 09-01
pursuant to IEC Rule 7.D.3, because the alleged violation, if true, would not
constitute a violation of Colorado Constitution Article XXIX, or any other standard of conduct or reporting requirement under the jurisdiction of the IEC. (Commissioner
Lasha excused).

The subject of the 4 hour and 25 minute executive session wasn't described. The agenda for the meeting described it as "Discussion pertaining to requests for advisory opinions and complaints filed with the Commission. C.R.S. §§24-6-402(3)(a)(III); 13-90-107(1)(b); 24-18.5-101; Article XXIX of the Colorado Constitution." If the session was mostly spent discussing Complaint 09-01, the Complaint wasn't an open and shut case; but it is possible that much of the session was spent on multiple advisory opinions. In 2008, there were 71 such requests according to the annual report.

* There commission issued three policies in 2008, although the copy of the website for the first appears incomplete, and another in 2009 (at the front page of their website) that produce an error when I tried to click on it to access it.

* According to the 2008 Annual Report, "Complaint 08-01: In re: Mike Coffman was determined to be non-frivolous, and is scheduled for a public hearing on March 6, 2009." This decision was made as follows:

Complaint 08-01: The IEC voted 3-1 (Commissioner Smith dissenting) to deem the complaint non-frivolous and proceed to a public hearing. (Commissioner Hopper recused). (10/06/08)

Motions in Mike Coffman's case (now Republican Congressman Coffman of the 6th Congressional District and formerly Colorado Secretary of State Coffman) were on the agenda of the Commission's January 23, 2009 meeting.

The substance of Complaint 08-01 against Coffman is discussed here, but there is apparently no way to get this information from the Ethics Commission itself.

* The 2008 Annual Report also noted the following:

Pending Litigation:

1. The Commission intervened in the case of Developmental Pathways v. Ritter, 07CV1353 (Denver District Court). This case, which concerns the constitutionality of Article XXIX, is pending. A status conference is scheduled for March 13, 2009.

2. The Commission filed an application in Denver District Court to protect the confidentiality of requests for advisory opinion on grounds that to release that information would cause a chilling effect on people seeking advice from the Commission. This case was consolidated with another case in which the IEC was sued under the Colorado Open Records Act for not providing this information. This case is pending. No hearing date has been set.

So far, all attempted to adjudicate the constitutionality of Amendment 41 on the merits have been rebuffed as unripe pending the establishment of the Independent Ethics Commission. But, now that the Commission exists and has started to render opinions, a court may someday rule on the constitutionality of particular components of Amendment 41 which are currently the subject of legal challenges. It isn't clear if this will happen in March or not.

Make of it what you will.

Amendment 41 Ruling Coming Monday

On Monday, February 25, 2008, the Colorado Supreme Court will release its ruling in the case of Developmental Pathways v. Ritter (full disclosure, my law partner is a Plaintiff in the action, I have not participated in the case in any way and I have no privileged information from the Plaintiff's legal team). At issue are the following questions:

1. Whether Colo. Const. art. XXIX is self-executing prior to the appointment of the Ethics Commission and the enactment of rules.

2. Whether Governor Ritter is a proper party.

3. Whether the gift limitations in article XXIX apply only to gifts given or received for private gain or personal financial gain in violation of the public trust.

4. Whether article XXIX, §§ 2 and 3 violate the rights of speech, association and petition.

The opinion will be available at this link on Monday morning.

The most notable and contested provisions of Amendment 41 impose a gift ban upon a large share of all governmental employees in Colorado.

There are deep disputes between supporters and opponents of the measure regarding what the language in the gift ban means. Supporters basically feel that the Amendment applies only in cases of gifts that amount to bribes. Opponents feel that the Amendment is far broader in effect, and would not necessarily be greatly concerned if the Colorado Supreme Court definitively gave the Amendment the narrow reading proposed by supporters.

The case could also have a meaningful impact on the Second Congressional District race in which Jared Polis, one of the biggest financial backers of Amendment 41 is a candidate.

The first two issues before the Colorado Supreme Court offer it an opportunity to punt and avoid reaching the merits of the case (for a second time, the Colorado Supreme Court refused to issue an advisory opinion previously requested by the state legislature). The second two issues go to the merits of the meaning and validity of the gift ban.

Pending this appeal, the gift ban of Amendment 41 has been the subject of an injunction preventing it from taking effect, so depending upon how the questions before the Colorado Supreme Court are resolved, the gift ban could again immediately begin to impact government employees starting on Monday.

Fixing Amendment 41

I offer below the text of Amendment 41 with changes I would propose to fix its flaws.

The proposal below: (1) eliminates ordinary government employees and local government from the scope of the constitutional provisions, (2) broadens the friends and family exception to all gifts not involving a breach of public trust, instead of "special occasions",(3) adds an express scholarship exception, (4) allows lobbyists to give up to $5 a year of non-food and beverage gifts, (5) provides a penalty (disgorgement) to public officials and legislators for non-breach of public trust gifts in violation of Amendment 41, (6) gives the commission the authority to revoke the registration of non-compliant professional lobbyists. With these changes, the vast majority of the flaws of the proposal would be resolved and it would become a very positive and beneficial provision of our constitution.

Changes (1) and (4) above can't be done any other way than by changing the constitution. Changes (2) and (3) above could probably be done by statute or rule, but making the clarification in the text itself would be better. Changes (5) and (6) above definitely could be done by statute.

This would take a citizen's initiative or referrendum, but would be well worth the trouble.

With the changes, fewer than 200 people, all of whom have policy making power, and their families, would be covered by the Amendment 41 gift ban. Without the changes tens of thousands, if not hundreds of thousands of people, are affected, despite the fact that most have no policy making power or only modest power.

Detailed Summary of Text Changes

Sections 2, 4, 8 and 9 are unchanged. The only change in Sections 1 and 5 are the removal of references to local government and govermment employees (including in the appointments clause at Section 5, 2(a)(V) pertaining to a local government representative). Section 7 relating to local government is repealed.

Local government rules impact a great many people, involved widely differing situations, and are well within the competence of the legislature to regulate without being thwarted by personal self interest. Government employees rarely are in a position to act on policy matters, so a gift ban, which amounts to a conclusive presumption of ill motives, isn't appropriate for them. Also, regulating government employee ethics is well within the legislature's competence and impacts collective bargaining agreements that shouldn't be changes without negotiation over the changes.

In Section 3, references to local government and government employees are removed and the following language (shown in brackets is added):

(g) GIVEN BY AN INDIVIDUAL WHO IS A RELATIVE OR PERSONAL FRIEND OF THE RECIPIENT [THAT DOES NOT INVOLVE A BREACH THE PUBLIC TRUST FOR PRIVATE GAIN, SUCH AS A GIFT GIVEN] ON A SPECIAL OCCASION. . . .
[(i) SCHOLARSHIPS BASED UPON MERIT OR FINANCIAL NEED, OR REQUIRING CONTINUED ACADEMIC PERFORMANCE FOR ELIGIBILITY;]
(4) NOTWITHSTANDING ANY PROVISIONS OF THIS SECTION TO THE CONTRARY, AND EXCEPTING CAMPAIGN CONTRIBUTIONS AS DEFINED BY LAW, NO PROFESSIONAL LOBBYIST, PERSONALLY OR ON BEHALF OF ANY OTHER PERSON OR ENTITY, SHALL KNOWINGLY OFFER, GIVE, OR ARRANGE TO GIVE, TO ANY PUBLIC OFFICER, OR MEMBER OF THE GENERAL ASSEMBLY, OR TO A MEMBER OF SUCH PERSON'S IMMEDIATE FAMILY, ANY GIFT OR THING OF VALUE, OF ANY KIND OR NATURE, [HAVING EITHER A FAIR MARKET VALUE OR AGGREGATE ACTUAL COST GREATER THAN FIVE DOLLARS ($5) IN ANY CALENDAR YEAR,] . . .
[(7) SIMILAR RESTRICTIONS ON LOCAL GOVERNMENT OFFICIALS OR GOVERNMENT EMPLOYEES MAY BE ESTABLISHED BY LAW.]

In Section 6, references to local government or government employees are removed, lettered subdivisions are added, and the following language shown in brackets is added:
[(b) ANY PUBLIC OFFICER OR MEMBER OF THE GENERAL ASSEMBLY WHO RECEIVES A GAIN IN VIOLATION OF SECTION 2, IF IT IS NOT ESTABLISHED THAT THE THERE IS A BREACH THE PUBLIC TRUST FOR PRIVATE GAIN, SHALL BE LIABLE TO THE STATE FOR THE AMOUNT OF THE FINANCIAL EQUIVALENT OF ANY BENEFITS OBTAINED BY SUCH ACTIONS.
(c) THE INDEPENDENT ETHICS COMMISSION MAY REVOKE A PROFESSIONAL LOBBYIST’S REGISTRATION FOR ANY VIOLATION OF THIS ARTICLE.
(d)] THE MANNER OF RECOVERY AND ADDITIONAL PENALTIES MAY BE PROVIDED BY LAW.

Full Proposed Text (Not Redlined)

ARTICLE XXIX Ethics in Government

Section 1. Purposes and findings.
(1) THE PEOPLE OF THE STATE OF COLORADO HEREBY FIND AND DECLARE THAT
(a) THE CONDUCT OF PUBLIC OFFICERS, AND MEMBERS OF THE GENERAL ASSEMBLY, MUST HOLD THE RESPECT AND CONFIDENCE OF THE PEOPLE;
(b) THEY SHALL CARRY OUT THEIR DUTIES FOR THE BENEFIT OF THE PEOPLE OF
THE STATE;
(c) THEY SHALL, THEREFORE, AVOID CONDUCT THAT IS IN VIOLATION OF THEIR
PUBLIC TRUST OR THAT CREATES A JUSTIFIABLE IMPRESSION AMONG MEMBERS OF THE
PUBLIC THAT SUCH TRUST IS BEING VIOLATED;
(d) ANY EFFORT TO REALIZE PERSONAL FINANCIAL GAIN THROUGH PUBLIC OFFICE OTHER THAN COMPENSATION PROVIDED BY LAW IS A VIOLATION OF THAT TRUST; AND
(e) TO ENSURE PROPRIETY AND TO PRESERVE PUBLIC CONFIDENCE, THEY MUST HAVE THE BENEFIT OF SPECIFIC STANDARDS TO GUIDE THEIR CONDUCT, AND OF A PENALTY MECHANISM TO ENFORCE THOSE STANDARDS.
(2) THE PEOPLE OF THE STATE OF COLORADO ALSO FIND AND DECLARE THAT THERE ARE CERTAIN COSTS ASSOCIATED WITH HOLDING PUBLIC OFFICE AND THAT TO ENSURE THE INTEGRITY OF THE OFFICE, SUCH COSTS OF A REASONABLE AND NECESSARY NATURE SHOULD BE BORN BY THE STATE OR LOCAL GOVERNMENT.
Section 2. Definitions. AS USED IN THIS ARTICLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:
(1)"GOVERNMENT EMPLOYEE" MEANS ANY EMPLOYEE,
INCLUDING INDEPENDENT CONTRACTORS, OF THE STATE EXECUTIVE BRANCH, THE STATE LEGISLATIVE BRANCH, A STATE AGENCY, A PUBLIC INSTITUTION OF HIGHER EDUCATION, OR ANY LOCAL GOVERNMENT, EXCEPT A MEMBER OF THE GENERAL ASSEMBLY OR A PUBLIC OFFICER.
(2) "LOCAL GOVERNMENT" MEANS COUNTY OR MUNICIPALITY.
(3) "LOCAL GOVERNMENT OFFICIAL" MEANS AN ELECTED OR APPOINTED OFFICIAL OF A LOCAL GOVERNMENT BUT DOES NOT INCLUDE AN EMPLOYEE OF A LOCAL GOVERNMENT.
(4) "PERSON" MEANS ANY INDIVIDUAL, CORPORATION , BUSINESS TRUST, ESTATE, TRUST, LIMITED LIABILITY COMPANY, PARTNERSHIP, LABOR ORGANIZATION, ASSOCIATION, POLITICAL PARTY, COMMITTEE, OR OTHER LEGAL ENTITY.
(5) "PROFESSIONAL LOBBYIST" MEANS ANY INDIVIDUAL WHO ENGAGES HIMSELF OR HERSELF OR IS ENGAGED BY ANY OTHER PERSON FOR PAY OR FOR ANY CONSIDERATION FOR LOBBYING. "PROFESSIONAL LOBBYIST" DOES NOT INCLUDE ANY VOLUNTEER LOBBYIST, ANY STATE OFFICIAL OR EMPLOYEE ACTING IN HIS OR HER OFFICIAL CAPACITY, EXCEPT THOSE DESIGNATED AS LOBBYISTS AS PROVIDED BY LAW, ANY ELECTED PUBLIC OFFICIAL ACTING IN HIS OR HER OFFICIAL CAPACITY, OR ANY INDIVIDUAL WHO APPEARS AS COUNSEL OR ADVISOR IN AN ADJUDICATORY PROCEEDING.
(6)"PUBLIC OFFICER" MEANS ANY ELECTED OFFICER, INCLUDING ALL STATEWIDE ELECTED OFFICEHOLDERS, THE HEAD OF ANY DEPARTMENT OF THE EXECUTIVE BRANCH,
AND ELECTED AND APPOINTED MEMBERS OF STATE BOARDS AND COMMISSIONS. "PUBLIC OFFICER" DOES NOT INCLUDE A MEMBER OF THE GENERAL ASSEMBLY, A MEMBER OF THE JUDICIARY, ANY LOCAL GOVERNMENT OFFICIAL, OR ANY MEMBER OF A BOARD, COMMISSION, COUNCIL OR COMMITTEE WHO RECEIVES NO COMPENSATION OTHER THAN A PER DIEM ALLOWANCE OR NECESSARY AND REASONABLE EXPENSES.
Section 3. Gift ban. (1) NO PUBLIC OFFICER, OR MEMBER OF THE GENERAL ASSEMBLY,
SHALL ACCEPT OR RECEIVE ANY MONEY, FORBEARANCE, OR FORGIVENESS OF INDEBTEDNESS FROM ANY PERSON, WITHOUT SUCH PERSON RECEIVING LAWFUL CONSIDERATION OF EQUAL OR GREATER VALUE IN RETURN FROM THE PUBLIC OFFICER, OR MEMBER OF THE GENERAL ASSEMBLY, WHO ACCEPTED OR RECEIVED THE MONEY, FORBEARANCE OR FORGIVENESS OF INDEBTEDNESS.
(2) NO PUBLIC OFFICER, OR MEMBER OF THE GENERAL ASSEMBLY EITHER DIRECTLY OR INDIRECTLY AS THE BENEFICIARY OF A GIFT OR THING OF VALUE GIVEN TO SUCH PERSON'S SPOUSE OR DEPENDENT CHILD, SHALL SOLICIT, ACCEPT OR RECEIVE ANY GIFT OR OTHER THING OF VALUE HAVING EITHER A FAIR MARKET VALUE OR AGGREGATE ACTUAL COST GREATER THAN FIFTY DOLLARS ($50) IN ANY CALENDAR YEAR, INCLUDING BUT NOT LIMITED TO, GIFTS, LOANS, REWARDS, PROMISES OR NEGOTIATIONS OF FUTURE EMPLOYMENT, FAVORS OR SERVICES, HONORARIA, TRAVEL, ENTERTAINMENT, OR SPECIAL DISCOUNTS, FROM A PERSON, WITHOUT THE PERSON RECEIVING LAWFUL CONSIDERATION OF EQUAL OR GREATER VALUE IN RETURN FROM THE PUBLIC OFFICER, MEMBER OF THE GENERAL ASSEMBLY, LOCAL GOVERNMENT OFFICIAL, OR GOVERNMENT EMPLOYEE WHO SOLICITED, ACCEPTED OR RECEIVED THE GIFT OR OTHER THING OF VALUE.
(3) THE PROHIBITIONS IN SUBSECTIONS (1) AND (2) OF THIS SECTION DO NOT APPLY IF THE GIFT OR THING OF VALUE IS:
(a) A CAMPAIGN CONTRIBUTION AS DEFINED BY LAW;
(b) AN UNSOLICITED ITEM OF TRIVIAL VALUE LESS THAN FIFTY DOLLARS
($50), SUCH AS A PEN, CALENDAR, PLANT, BOOK, NOTE PAD OR OTHER SIMILAR ITEM;
(c) AN UNSOLICITED TOKEN OR AWARD OF APPRECIATION IN THE FORM OF A PLAQUE,
TROPHY, DESK ITEM, WALL MEMENTO, OR SIMILAR ITEM;
(d) UNSOLICITED INFORMATIONAL MATERIAL, PUBLICATIONS, OR SUBSCRIPTIONS RELATED TO THE RECIPIENT'S PERFORMANCE OF OFFICIAL DUTIES;
(e) ADMISSION TO, AND THE COST OF FOOD OR BEVERAGES CONSUMED AT, A RECEPTION,
MEAL OR MEETING BY AN ORGANIZATION BEFORE WHOM THE RECIPIENT APPEARS TO SPEAK OR TO ANSWER QUESTIONS AS PART OF A SCHEDULED PROGRAM;
(f) REASONABLE EXPENSES PAID BY A NONPROFIT ORGANIZATION OR OTHER STATE OR LOCAL GOVERNMENT FOR ATTENDANCE AT A CONVENTION, FACT-FINDING MISSION OR TRIP, OR OTHER MEETING IF THE PERSON IS SCHEDULED TO DELIVER A SPEECH, MAKE A PRESENTATION, PARTICIPATE ON A PANEL, OR REPRESENT THE STATE OR LOCAL GOVERNMENT, PROVIDED THAT THE NON-PROFIT ORGANIZATION RECEIVES LESS THAN FIVE PERCENT (5%) OF ITS FUNDING FROM FOR-PROFIT ORGANIZATIONS OR ENTITIES;
(g) GIVEN BY AN INDIVIDUAL WHO IS A RELATIVE OR PERSONAL FRIEND OF THE RECIPIENT THAT DOES NOT INVOLVE A BREACH THE PUBLIC TRUST FOR PRIVATE GAIN, SUCH AS A GIFT GIVEN ON A SPECIAL OCCASION.
(h) A COMPONENT OF THE COMPENSATION PAID OR OTHER INCENTIVE GIVEN TOTHE RECIPIENT IN THE NORMAL COURSE OF EMPLOYMENT.
(i) SCHOLARSHIPS BASED UPON MERIT OR FINANCIAL NEED, OR REQUIRING CONTINUED ACADEMIC PERFORMANCE FOR ELIGIBILITY;
(4) NOTWITHSTANDING ANY PROVISIONS OF THIS SECTION TO THE CONTRARY, AND EXCEPTING CAMPAIGN CONTRIBUTIONS AS DEFINED BY LAW, NO PROFESSIONAL LOBBYIST, PERSONALLY OR ON BEHALF OF ANY OTHER PERSON OR ENTITY, SHALL KNOWINGLY OFFER, GIVE, OR ARRANGE TO GIVE, TO ANY PUBLIC OFFICER, OR MEMBER OF THE GENERAL ASSEMBLY, , OR TO A MEMBER OF SUCH PERSON'S IMMEDIATE FAMILY, ANY GIFT OR THING OF VALUE, OF ANY KIND OR NATURE, HAVING EITHER A FAIR MARKET VALUE OR AGGREGATE ACTUAL COST GREATER THAN FIVE DOLLARS ($5) IN ANY CALENDAR YEAR, NOR KNOWINGLY PAY FOR ANY MEAL, BEVERAGE, OR OTHER ITEM TO BE CONSUMED BY SUCH PUBLIC OFFICER,OR MEMBER OF THE GENERAL ASSEMBLY, OR NOT SUCH GIFT OR MEAL, BEVERAGE OR OTHER ITEM TO BE CONSUMED IS OFFERED, GIVEN OR PAID FOR IN THE COURSE OF SUCH LOBBYIST'S BUSINESS OR IN CONNECTION WITH A PERSONAL OR SOCIAL EVENT; PROVIDED, HOWEVER , THAT A PROFESSIONAL LOBBYIST SHALL NOT BE PROHIBITED FROM OFFERING OR GIVING TO A PUBLIC OFFICER, OR MEMBER OF THE GENERAL ASSEMBLY, WHO IS A MEMBER OF HIS OR HER IMMEDIATE FAMILY ANY SUCH GIFT, THING OF VALUE, MEAL, BEVERAGE OR OTHER ITEM.
(5) THE GENERAL ASSEMBLY SHALL MAKE ANY CONFORMING AMENDMENTS TO THE REPORTING AND DISCLOSURE REQUIREMENTS FOR PUBLIC OFFICERS, MEMBERS OF THE GENERAL ASSEMBLY AND PROFESSIONAL LOBBYISTS, AS PROVIDED BY LAW, TO COMPLY WITH THE REQUIREMENTS SET FORTH IN THIS SECTION.
(6) THE FIFTY-DOLLAR ($50) LIMIT SET FORTH IN SUBSECTION (2) OF THIS SECTION SHALL BE ADJUSTED BY AN AMOUNT BASED UPON THE PERCENTAGE CHANGE OVER A FOUR-YEAR PERIOD IN THE UNITED STATES BUREAU OF LABOR STATISTICS CONSUMER PRICE INDEX FOR DENVER-BOULDER-GREELEY, ALL ITEMS, ALL CONSUMERS, OR ITS SUCCESSOR INDEX, ROUNDED TO THE NEAREST LOWEST DOLLAR. THE FIRST ADJUSTMENT SHALL BE DONE IN THE FIRST QUARTER OF2011 AND THEN EVERY FOUR YEARS THEREAFTER.
(7) SIMILAR RESTRICTIONS ON LOCAL GOVERNMENT OFFICIALS OR GOVERNMENT EMPLOYEES MAY BE ESTABLISHED BY LAW.
Section 4. Restrictions on representation after leaving office. NO STATEWIDE ELECTED OFFICEHOLDER OR MEMBER OF THE GENERAL ASSEMBLY SHALL PERSONALLY REPRESENT ANOTHER PERSON OR ENTITY FOR COMPENSATION BEFORE ANY OTHER STATEWIDE ELECTED OFFICEHOLDER OR MEMBER OF THE GENERAL ASSEMBLY, FOR A PERIOD OF TWO YEARS FOLLOWING VACATION OF OFFICE. FURTHER RESTRICTIONS ON PUBLIC OFFICERS OR MEMBERS OF THE GENERAL ASSEMBLY AND SIMILAR RESTRICTIONS ON OTHER PUBLIC OFFICERS,
LOCAL GOVERNMENT OFFICIALS OR GOVERNMENT EMPLOYEES MAY BE ESTABLISHED BY LAW.
Section 5. Independent ethics commission. (1) THERE IS HEREBY CREATED AN
INDEPENDENT ETHICS COMMISSION TO BE COMPOSED OF FIVE MEMBERS. THE PURPOSE
OF THE INDEPENDENT ETHICS COMMISSION SHALL BE TO HEAR COMPLAINTS, ISSUE FINDINGS,
AND ASSESS PENALTIES, AND ALSO TO ISSUE ADVISORY OPINIONS, ON ETHICS ISSUES ARISING UNDER THIS ARTICLE AND UNDER ANY OTHER STANDARDS OF CONDUCT AND REPORTING REQUIREMENTS AS PROVIDED BY LAW. THE INDEPENDENT ETHICS COMMISSION SHALL HAVE AUTHORITY TO ADOPT SUCH REASONABLE RULES AS MAY BE NECESSARY FOR THE PURPOSE OF ADMINISTERING AND ENFORCING THE PROVISIONS OF THIS ARTICLE AND ANY OTHER STANDARDS OF CONDUCT AND REPORTING REQUIREMENTS AS PROVIDED BY LAW. THE GENERAL ASSEMBLY SHALL APPROPRIATE REASONABLE AND NECESSARY FUNDS TO COVER STAFF AND ADMINISTRATIVE EXPENSES TO ALLOW THE INDEPENDENT ETHICS COMMISSION TO CARRY OUT ITS DUTIES PURSUANT TO THIS ARTICLE. MEMBERS OF THE COMMISSION SHALL RECEIVE NO COMPENSATION FOR THEIR SERVICES ON THE COMMISSION.
(2) (a) MEMBERS OF THE INDEPENDENT ETHICS COMMISSION SHALL BE APPOINTED IN THE FOLLOWING MANNER AND ORDER:
(I) ONE MEMBER SHALL BE APPOINTED BY THE COLORADO SENATE;
(II) ONE MEMBER SHALL BE APPOINTED BY THE COLORADO HOUSE OF REPRESENTATIVES;
(III) ONE MEMBER SHALL BE APPOINTED BY THE GOVERNOR OF THE STATE OF COLORADO;
(IV) ONE MEMBER SHALL BE APPOINTED BY THE CHIEF JUSTICE OF THE COLORADO SUPREME COURT; AND
(V) ONE MEMBER SHALL BE APPOINTED BY THE AFFIRMATIVE VOTE OF AT LEAST THREE OF THE FOUR MEMBERS APPOINTED PURSUANT TO SUBPARAGRAPHS (I) TO (IV) OF THIS PARAGRAPH (a).
(b) NO MORE THAN TWO MEMBERS SHALL BE AFFILIATED WITH THE SAME POLITICAL PARTY.
(c) EACH OF THE FIVE MEMBERS SHALL BE REGISTERED COLORADO VOTERS AND SHALL HAVE BEEN CONTINUOUSLY REGISTERED WITH THE SAME POLITICAL PARTY, OR CONTINUOUSLY UNAFFILIATED WITH ANY POLITICAL PARTY, FOR AT LEAST TWO YEARS PRIOR TO APPOINTMENT TO THE COMMISSION.
(d) MEMBERS OF THE INDEPENDENT ETHICS COMMISSION SHALL BE APPOINTED TO TERMS OF FOUR YEARS; EXCEPT THAT, THE FIRST MEMBER APPOINTED BY THE COLORADO SENATE AND THE FIRST MEMBER APPOINTED BY THE GOVERNOR OF THE
STATE OF COLORADO SHALL INITIALLY SERVE TWO YEAR TERMS TO ACHIEVE STAGGERED ENDING DATES.
(e) IF A MEMBER IS APPOINTED TO FILL AN UNEXPIRED TERM, THAT MEMBER'S TERM SHALL END AT THE SAME TIME AS THE TERM OF THE PERSON BEING REPLACED.
(f) EACH MEMBER SHALL CONTINUE TO SERVE UNTIL A SUCCESSOR HAS BEEN APPOINTED,
EXCEPT THAT IF A MEMBER IS UNABLE OR UNWILLING TO CONTINUE TO SERVE UNTIL A SUCCESSOR HAS BEEN APPOINTED, THE ORIGINAL APPOINTING AUTHORITY AS DESCRIBED IN THIS SUBSECTION SHALL FILL THE VACANCY PROMPTLY.
(3) (a) ANY PERSON MAY FILE A WRITTEN COMPLAINT WITH THE INDEPENDENT ETHICS COMMISSION ASKING WHETHER A PUBLIC OFFICER, OR MEMBER OF THE GENERAL ASSEMBLY, HAS FAILED TO COMPLY WITH THIS ARTICLE OR ANY OTHER STANDARDS OF CONDUCT OR REPORTING REQUIREMENTS AS PROVIDED BY LAW WITHIN THE PRECEDING TWELVE MONTHS.
(b) THE COMMISSION MAY DISMISS FRIVOLOUS COMPLAINTS WITHOUT CONDUCTING A PUBLIC HEARING. COMPLAINTS DISMISSED AS FRIVOLOUS SHALL BE MAINTAINED CONFIDENTIAL BY THE COMMISSION.
(c) THE COMMISSION SHALL CONDUCT AN INVESTIGATION, HOLD A PUBLIC HEARING, AND RENDER FINDINGS ON EACH NON-FRIVOLOUS COMPLAINT PURSUANT TO WRITTEN RULES ADOPTED BY THE COMMISSION.
(d) THE COMMISSION MAY ASSESS PENALTIES FOR VIOLATIONS AS PRESCRIBED BY THIS ARTICLE AND PROVIDED BY LAW.
(e) THERE IS HEREBY ESTABLISHED A PRESUMPTION THAT THE FINDINGS SHALL BE BASED ON A PREPONDERANCE OF EVIDENCE UNLESS THE COMMISSION DETERMINES THAT THE CIRCUMSTANCES WARRANT A HEIGHTENED STANDARD.
(4) MEMBERS OF THE INDEPENDENT ETHICS COMMISSION SHALL HAVE THE POWER TO SUBPOENA DOCUMENTS AND TO SUBPOENA WITNESSES TO MAKE STATEMENTS AND PRODUCE DOCUMENTS.
(5) ANY PUBLIC OFFICER, OR MEMBER OF THE GENERAL ASSEMBLY MAY SUBMIT A WRITTEN REQUEST TO THE INDEPENDENT ETHICS COMMISSION FOR AN ADVISORY OPINION ON WHETHER ANY CONDUCT BY THAT PERSON WOULD CONSTITUTE A VIOLATION OF THIS ARTICLE, OR ANY OTHER STANDARDS OF CONDUCT OR REPORTING REQUIREMENTS AS PROVIDED BY LAW. THE COMMISSION SHALL RENDER AN ADVISORY OPINION PURSUANT TO WRITTEN RULES ADOPTED BY THE COMMISSION.
Section 6. Penalty. (a) ANY PUBLIC OFFICER, OR MEMBER OF THE GENERAL ASSEMBLY WHO BREACHES THE PUBLIC TRUST FOR PRIVATE GAIN AND ANY PERSON OR ENTITY INDUCING SUCH BREACH SHALL BE LIABLE TO THE STATE FOR DOUBLE THE AMOUNT OF THE FINANCIAL EQUIVALENT OF ANY BENEFITS OBTAINED BY SUCH ACTIONS.
(b) ANY PUBLIC OFFICER OR MEMBER OF THE GENERAL ASSEMBLY WHO RECEIVES A GAIN IN VIOLATION OF SECTION 2, IF IT IS NOT ESTABLISHED THAT THE THERE IS A BREACH THE PUBLIC TRUST FOR PRIVATE GAIN, SHALL BE LIABLE TO THE STATE FOR THE AMOUNT OF THE FINANCIAL EQUIVALENT OF ANY BENEFITS OBTAINED BY SUCH ACTIONS.
(c) THE INDEPENDENT ETHICS COMMISSION MAY REVOKE A PROFESSIONAL LOBBYIST’S REGISTRATION FOR ANY VIOLATION OF THIS ARTICLE.
(d) THE MANNER OF RECOVERY AND ADDITIONAL PENALTIES MAY BE PROVIDED BY LAW.
Section 7. Repealed,
Section 8. Conflicting provisions declared inapplicable, ANY PROVISIONS IN THE STATUTES OF THIS STATE IN CONFLICT OR INCONSISTENT WITH THIS ARTICLE ARE HEREBY DECLARED TO BE PREEMPTED BY THIS ARTICLE AND INAPPLICABLE TO THE MATTERS COVERED BY AND PROVIDED FOR IN THIS ARTICLE.
Section 9. Legislation to facilitate article. LEGISLATION MAY BE ENACTED TO FACILITATE THE OPERATION OF THIS ARTICLE, BUT IN NO WAY SHALL SUCH LEGISLATION LIMIT OR RESTRICT THE PROVISIONS OF THIS ARTICLE OR THE POWERS HEREIN GRANTED.

Ackerman On Policy Wonks

Bruce Ackerman also has good words at Balkinization on the audience for progressive legal scholarship and the means by which it can accomplish its ends:

Heather Gerken is on to something important . . . that goes well beyond election law and enlightens the general predicament of progressive legal scholarship today. Quite simply, we’ve lost the federal courts for a decade, and maybe longer, so who precisely is our audience?

Presidents and governors, Congresses and legislatures, and agencies and NGOs-- ­ when progressives manage to gain the upper hand. And, more broadly, ordinary citizens.

But to make sense to these audiences, we must better understand their distinctive interests and modes of understanding. Whatever you might think of federal judges, our new audience . . . [is] often interested in the public good. To be sure, professional politicians will turn away if policy prescriptions are plainly inconsistent with their interest in reelection, but there are lots of reforms that are in the grey zone where the merits matter. And, of course, Gerken is right to insist that politicians pay a lot more attention if a policy initiative can somehow penetrate the fog that surrounds their constituents, who generally don't have much of a clue about what’s going on.

So what’s a poor legal-policy wonk to do? How is he going to grab the attention, of his new audiences?

This is a general problem-- ­ ask any tax lawyer or environmental lawyer or intellectual property guru.

As someone who sees himself very much as a progressive legal scholar and legal-policy wonk, this is huge. It is hard enough to decide what is good policy, and it is harder still to secure the power needed to make it into law.

After you spend a sufficient amount of time in the pseudo-utopian world of trying to make sense of what is good public policy, you start waking up to the fact that many of approaches that this mode of thinking leads you naturally into, like proposals for amendments to the United States Constitutions, or bold, theoretically pure liberal legislation, is a theoretical dead end in the sort to medium term.

Gay rights activists, for example, have known since the Stonewall riots in 1969, that passing laws banning employment discrimination on the basis of sexual orientation was the right thing to do. This is been clearly the right thing to do as a matter of public policy in the larger realm of legal-wonkdom since, at least, the mid-1980s. Colorado only finally got around to making this law in 2007, however, and achieving this at the national level is still on the "to do" list, and we continue to this day to discharge gay soldiers from the U.S. military, right in the middle of conducting two regional wars in Iraq and Afghanistan respectively.

Alas, Ackerman's suggestions, as well as those of Gerken, to whom he is reacting, are less inspiring than their joint identification of the problem.

Gerken's construct of the conflicts within the progressive movement are also on target:

[T]he structure of the reform process determines what kind of reform gets passed. Or, in the case of the United States, the structure of the reform process means almost nothing gets passed. Rather than continuing to fight reform battles on this hostile turf, we should focus on changing the underlying terrain.

The most effective way to change the terrain, in my view, is to blend ideas from the two major intellectual camps in my field. On one side are the participatory democrats, who favor bottom-up, grass-roots reform. On the other side are the competitive democrats, who subscribe to an elite-centered vision of politics and chide the participatory theorists for ignoring the role that power and elite incentives play in shaping electoral politics.

If we want to create a virtuous cycle for reform, we must combine elements of these two theories. We should take advantage of the many ways in which political elites generate political energy -- serve as "conversational entrepreneurs," to use Robert Bennett’s term -- and redirect that energy into a conversation about reform. And we should make it easier for citizens to take part in that conversation. As I noted yesterday, these two strategies are mutually reinforcing. If partisan self-interest is redirected toward reform, political entrepreneurs have an incentive to find new ways to frame, and draw citizens into, reform debates. If citizens become more engaged in reform debates, political elites will have more incentive to care about reform.

As in many things, of the two groups of "lowercase d" democrats described above, I am inclined to think that Joseph Schumpeter, who is the central intellectual figure among the "competitive democrats" is closer to the mark than his opponents.

I am, for example, deeply impressed by the extent to which supposedly participatory democratic institution, like the citizen initiative and the caucus process, are dominanted by political elites. I am also impressed by the degree to which public protest is an ineffective means of bringing about political change absent the most extreme circumstances.

I worry about pure grass roots reform efforts not only because they often don't work as advertised. I also distrust grass roots effort at specific legal reforms in fairly obscure areas, because, while the grass roots are good at knowing that the system is broken, the man on the street is far less adept at proposing thoughtful solutions to those problem that will actually work. Uninformed intuition is often a poor guide to predicting the impact that specific legal reforms will produce.

The most recent case in point is Amendment 41 in Colorado. Amendment 41 was widely supported by Colorado voters in 2006 who agreed that its basic premise that it is constitutional and proper and desirable to remove opportunities to secure private personal gain from political office, was sound. But, because it was drafted in an overly expansive and ham handed manner, it has fiercely divided people of good will with similar political values, and has become a political liability, rather than a political triumph for reform. The fact that even many relatively sophisticated political players failed to see the flaws in how it was drafted illustrates the perils of relying on the grass roots to implement specific political changes.

Instead, my credo of tactics includes some of the following:

1. Secure reform by the most innocuous means possible. Don't use a constitutional amendment when an executive order or change in regulation or local ordinance will do.
2. In times of divided government, focus on reform in areas with weak partisan implications; in times of partisan control, focus on reform in areas where there is widespread consensus within the ruling party.
3. Approach problems in ways that reduce the importance of hostile institutions. If the courts are hostile, find non-legal solutions; it the federal government is hostile, fine state and local solutions; if state and local government is hostile, find federal solutions; if government is hostile, find private solutions.
4. Involve multiple people with deep policy expertise in the nitty gritty of preparing detailed reform measures.
5. Use generalized discontent to public policy failures as a impetus to develop groups of informed laypeople and experts to suggest specific reforms and provide a theoretical explanation for what is wrong with the status quo.
6. Educate politicians regarding policy issues sufficiently to allow them to artfully articulate calls for reform as political issues.

Mark Grueskin All Wet

Mark Greuskin is the lawyer who has been hired to come up with legislation that would tame the beast that is Amendment 41, a pervasive and draconian gift ban on all gifts to government employees adopted by the people of Colorado as part of the state constitution this past November.

Today's Q&A with him is found at Colorado Confidential. His basic argument is that the breach of public trust language found in the legislative intent section of this constitutional amendment can be used to override the express language of the gift ban that bans all gifts without regard to intent.

His argument is implausible and a stretch. While I'd always been skeptical of the implementing legislation course, some rather clever arguments (if not terribly strong arguments) made by Luis at Square State about how to interpret gifts to spouses and children under Amendment 41 had left me secretly hoping that Mark Grueskin would have great ideas that I hadn't noticed about how to tame the beast.

Instead, he thinks that it is possible to turn Amendment 41 into a bribery statute, in which only gifts intended to influence legislation count.

The trouble is that bribery was already illegal, and that no government employees who weren't elected officials and political appointees would have been included in the gift ban if that we the case. Yet, it is unambiguously clear that file clerks count as government employees under this law, and that they are not permitted to receive any kind of gift.

Implementing legislation can't rewrite express terms of legislation, or override the constitution. Neither can legislative intent provisions. Both sources can only clarify ambiguities. Amendment 41 doesn't suffer from ambiguity, it suffers from excessive, overzealous detail.

The people who drafted Amendment 41 to say this are idiots and assholes (albeit with overzealous good intentions), but Greuskin's main battle plan so to speak, as expressed at Colorado Confidential, is simply lame. I have real doubts about whether the leigslature will even show interest in passing legislation along those lines.

Jared Polis deserves all the shit he gets for backing this measure.