Volcanic Ash

The Political Radar blog had an interesting item on a letter from legislative leaders asking the attorney general to weigh in on the Ethics Commission’s ruling that members of task forces and working groups formed by the Legislature must follow the same ethics rules on lobbying as members of other state boards and commissions.

I’ll leave it to the courts to decide the legalities, if legislators and the Ethics Commission push it that far.

But questions of what is illegal under the state’s narrow ethics laws and what is unethical are often two different things.

House Speaker Calvin Say and Senate President Shan Tsutsui said in their letter that legislators rely on task forces to gather expert information and that subjecting members to ethical restrictions on lobbying would have a “chilling effect.”

You could turn that around and argue that the Legislature’s reliance on task forces free of ethical reins has a chilling effect on openness, transparency and the public’s right to fair participation in the legislative process.

When lawmakers gather information by traditional means such as public hearings and workshops, everything is in the open and everybody gets their say.

When the information gathering is turned over to “experts” on shadowy task forces, the chosen few who are appointed have special access to legislators’ ears and everybody else is excluded from having a voice in a key part of the decision-making.

When the “experts” given exclusive access to legislators’ ears are paid lobbyists on the issue and often contributors to lawmakers’ campaigns, we have an ethics problem.

Say and Tsutsui contend that the Ethics Commission’s stance denies lobbyists and their employers their “constitutional right to petition government.”

That’s nonsense. They can petition government by writing letters and testifying at hearings like everybody else; they just don’t get privileged access.

An example of the problem is the task force that ignited the dispute — a panel on urban development formed by Sen. Donovan Dela Cruz that required inclusion of the Hawaii Building and Construction Trades Council, the General Contractors Association of Hawaii and “any other interested stakeholders or entities, including but not limited to developers, architects, and contractors.”

There was no required representation from the large part of the community that favors less development rather than more.

I said in a column that the membership list looks more like campaign donors dividing up the spoils than “experts,” and it invites shady dealings to allow such a group to operate without ethical restrictions.

Every year, the Legislature seems to have an issue that drains its energy with negative vibes — all to no avail in the end.

In 2011, it was SB 671, a gutted ethics bill that attempted to expand the freebies legislators could receive from special interests. It finally met an inglorious death yesterday with a deferral motion in the House Judiciary Committee.

It started when lawmakers’ noses got out of joint after the state Ethics Commission said they couldn’t accept free tickets to a dinner sponsored by a politically connected group with all kinds of interests before the Legislature.

The ruling was a fair reading of the 39-year-old gifts law, which bars legislators and other state officials from accepting freebies that can reasonably be inferred as intended to influence or reward them in the performance of their duties.

The first salvo by Senate Majority Leader Brickwood Galuteria would have gutted gift limits and allowed legislators to accept — or even solicit — dinners, trips and other gifts worth up to $200 from just about any special interest.

The bill whittled down by the Judiciary Committee and passed by the Senate was the most benign version offered, limiting the freebies to fundraising events of IRS 501(c)3 organizations (public charities and private foundations).

Judiciary Chairman Clayton Hee said he’d abandoned the measure if the Ethics Commission opposed, promising, “Let me say that if the Ethics Commission decides this is a no-go, the chair of the committee will concur that it is a no-go.”

Assuming Hee was good to his word, the bill was dead when the Ethics Commission voted 3-1 to oppose it, but the House pushed ahead with its own version that restored all of the worst aspects of the original Senate bill by opening the door for business organizations, labor unions, trade associations and even foreign governments to ply them with gifts.

Though the House finally gave in to overwhelming public opposition and killed the bill, there’s no sign that lawmakers took any lesson as to what was wrong with it. The betting here is that it’ll be back in some future session when they find the timing more advantageous.

One of the most specious arguments in the debate over SB 671 is the one offered by House Majority Leader Blake Oshiro that rules governing the gifts public officials can receive from special interests need to be loosened because Hawai‘i’s ethics law hasn’t been updated in 39 years.

For one thing, Hawai‘i’s law is viewed as one of the more lenient and would likely have to be tightened — not loosened — if a serious review were undertaken in line with common understandings about official propriety that have evolved in the last 39 years.

The coverage of this bill around the world, documented by Larry Geller in Disappeared News, is because it’s a “man bites dog” story in which the Hawai‘i Legislature is headed in the opposite direction of public sensibilities here and elsewhere.

The other reason the Oshiro argument lacks merit is that basic ethics are pretty much timeless. How often do the Ten Commandments, the Four Noble Truths of Buddhism or The Five Pillars of Islam need tweaking? When was the last time the Golden Rule was updated?

Our current law is based on the simple and sound ethic that public officials should not solicit or accept gifts intended to influence or reward them in the performance of their duties.

In an ideal world, that would say it all and lawmakers would exercise common sense in erring on the side of good ethics.

That they instead feel entitled to create loopholes that render the law meaningless in order to feed their hunger for freebies tells us that the Ethics Commission is exactly right about the need to get more specific in spelling out what is and is not acceptable behavior.

Suggestions that Ethics Commission executive director Les Kondo could be a target of retaliation by lawmakers for not playing ball are alarming.

After numerous failed attempts to finesse the wording, legislators need to recognize that what they want to do isn’t going to fly and back off.

The one thing you can count on with our Legislature is that bad ideas never die, especially when it comes to legislators taking care of themselves.

So it is with SB 671, a shameless attempt by lawmakers to render themselves ethically free to accept gifts, travel and free meals from those seeking to buy their favor.

The original version drafted by Senate Majority Leader Brickwood Galuteria would have allowed legislators and other public officials to accept or even solicit virtually unlimited travel and meals and other gifts worth up to $200 from just about anybody seeking to influence their actions.

After a public outcry, the version that passed the Senate was stripped down to limit the gifts lawmakers could accept to free tickets to fundraisers of IRS 501(c)(3) organizations (public charities and private foundations).

The state Ethics Commission voted last week to oppose even that, noting that charities have business before the Legislature and if lawmakers want to attend their functions they can pay their own way like everybody else.

When the bill got to the House, Majority Leader Blake Oshiro amended it again to throw travel and other gifts back into the mix of allowable freebies and expand the definition of “charities” that could gift legislators to once again include nominally nonprofit lobbying organizations, labor unions, trade associations and business organizations such as the Chamber of Commerce and Board of Realtors.

“Invitations could be accepted even where it reasonably could be inferred that the invitation is offered to influence or reward the legislator or state employee,” said Ethics Commission executive director Les Kondo.

The Ethics Commission interprets current law to bar meals and gifts worth more than $25 in the absence of a clear public benefit.

Oshiro’s main motivation for loosening the rules seems to be that he’s tired of fielding calls from ethically challenged colleagues whining that they can’t have their freebies. Poor babies.

The House Judiciary Committee put off further consideration until next week.