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POLITICS AS USUAL (By Jim Baron) Some happy, some not, but reform will pass

November 13, 2011

The state’s public employee unions are not happy with the comprehensive pension reform that is now going to slide through the General Assembly on the skids that have been greased by the leadership of that body. The citizen’s groups like RISC and EngageRI, who have supported the reform right along, seem pretty contented.
So much for all that know-it-all talk about how the unions have all this clout on Smith Hill.
Much like the budget process, individual legislators will be welcome to submit dozens of amendments, they will be able to argue about those amendments for hours on end, then they will get to watch each amendment peter out in a little puff of smoke, fall toward the earth and disappear without a trace, like the little twinkles of light from Fourth of July fireworks.
The bill has been amended all that it is going to be, and all the debate, all the phone calls and e-mails to individual lawmakers, all the protests, and all the rallies in the world are not going to change a single paragraph, sentence or comma.
The unions, or aggrieved retirees, will have one more chance to howl when they, inevitably, challenge these changes in court. It remains to be seen how a judge, and, ultimately, the RI Supreme Court, will view the situation. Is the state really in such perilous financial shape that it has no choice but to abrogate the contract that the state workers and teachers thought they had — and which they paid just shy of 10 percent of each paycheck toward — with the state for their retirement benefits.
Are Gov. Lincoln Chafee, General Treasurer Gina Raimondo and the General Assembly leaders Machiavellian masterminds (I heard you snigger at that), who plotted this exactly right several chess moves ahead?
First let’s take the judges, among the highest paid of state employees with the cushiest pensions. Was it by crafty design that the judges escaped the reform relatively unscathed, although they will have to chip in a full 10 percent of their six-figure salary and are no longer escaping the COLA freeze? Or is it just second nature for the General Assembly to kiss judicial butt, and Chafee and Raimondo recognized that reality from the get-go?
Then there is Central Falls.
Was it just luck that Mayor Charles Moreau and the City Council sought judicial receivership and opened the door for state officials to step in and start calling the shots? Or was the second receiver (former Supreme Court Justice) Robert Flanders brought in on purpose as a hatchet man to barbarously chop people’s pensions in half to scare the bejeezus out of state employees, demonstrating to them what can happen if they don’t go along with pension reform?
Are our state leaders that smart, or were they just lucky that things have played out the way they did?

Who says Rhode Island can’t do anything right?
As the various “Occupy” movements across the country have degenerated into violent disarray, the politicians, cops and protesters involved with Occupy Providence have shown the way.
Providence Mayor Angel Tavares has wisely avoided the kind of chest-thumping, get-tough ultimatums that have limited the options of macho mayors in other communities. Likewise, Public Safety Director Steven Pare has taken an accommodating, tolerant and cooperative tone with the demonstrators that — Surprise! Surprise! — has been 100 percent effective in protecting public safety. Tavares and Pare have shown real leadership instead of the knee-jerk, panicked response we have seen in other cities.
And the Occupiers, well they just have to be the most polite darned bunch of antiestablishment radicals I have ever encountered. They have shown absolutely no inclination to engage in angry confrontation and are not spoiling for a fight, so they are not getting either.
As a result, tear gas is not swirling in the air over the streets of Providence, the glass is still in all the store windows downtown, no vehicles have been overturned and no cops or protesters have been injured. That seems to be a pretty good definition of an all-around success.

I stumbled across a U.S. Supreme Court ruling last week that Rhode Islanders might find interesting. It says that a legislator’s vote is not protected speech under the First Amendment, specifically as it relates to conflict of interest laws.
You should be warned at the outset not to get too excited about this, it will not overturn the infamous “Bill Irons decision” of the RI Supreme Court that, for the moment at least, puts General Assembly members out of the reach of the RI Ethics Commission. This specific case, Nevada Commission on Ethics v. Carrigan does not address a “speech in debate clause” like the one in the RI Constitution that prevented our Ethics Commission from prosecuting Irons for allegedly acting on pharmacy legislation that affected CVS, a client of Irons’ insurance business. It concerned a city councilman in Sparks, Nevada, who voted in favor of a development project (rejected by the full council) in which a buddy and onetime campaign manager was a principal.
Justice Antonin Scalia, writing for a unanimous court last June, asserts that voting by a legislator is different than voting by a citizen.
“(A) legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.”
Quoting a previous high court decision he added that “the legislator casts his vote ‘as trustee for his constituents, not as a prerogative of personal power.’”
John Marion, executive director of Common Cause of RI, said, “Legally it holds no significance, it doesn’t change the fact that the speech in debate clause protects legislators, gives them immunity from the Code of Ethics for those core legislative acts, but it sure does give a lot of intellectual support to the idea that what we’ve done here in the state by having an Ethics Commission and giving it broad powers over all public officials is permissible.”
Marion points to a part of Scalia’s decision that said one of the first things Thomas Jefferson did upon becoming president of the Senate, was write rules on when a senator must recuse because of a conflict of interest. The decision also notes that the House adopted a similar rule within a week after first having a quorum.
“The First Amendment was still wet ink on paper” when those rules were adopted, Marion told Politics as Usual.
Marion said the Carrigan decision, “will help us make our argument with the legislature and the people. The case completely helps show the sort of thing we are still trying to do in getting the jurisdiction back for the Ethics Commission over the legislature is the right thing in the mind of the court and in the history of the United States, which says all legislatures have these sorts of recusal rules and some way of enforcing them.”
Jason Gramitt, the attorney for the Ethics Commission who handled the Irons case, said, “if the Carrigan case had been decided before the Irons case, it certainly would have been food for thought for our Supreme Court on what a core legislative act really is.
The only implication for the future, Gramitt said, is that I hope the legislature as they start the new legislative session, is aware of the Carrigan decision because I think it would be important for each legislator to know exactly whose interest he is representing when he is engaging in debate or casting a vote, that it is the interest of the constituent and the legislator has no personal speech right to legislative voting and debate.”
The House has in a recent session passed legislation (sponsored by Gordon Fox before he became speaker) that would have put a question to voters on whether to amend the constitution to allow the Ethics Commission to oversee legislators’ ethics but it died without a vote in the Senate. My guess is we will be talking about this issue in light of the Carrigan decision when the General Assembly begins its new session in January.

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