Saturday, July 18, 2009

DR: The Rule of Law v. the Law of Rules

In the hierarchy of codes for human behavior, there are:

1. Holy books and natural laws
2. Constitutions
3. Statutes
4. Regulations
5. Rules
6. Resolutions
In 2007, lawmakers on the Speaker's Reform Commission showed that if you want to do something without really doing anything, adopt a rule that can be suspended. The wary citizen, therefore, has learned that talk about rules "reform" is so much hot air.

One recent development in the House proves that point, while another development proves that "resolutions" in the Senate may be even worse.

Senate Resolutions - A Law Unto Themselves?
The Philadelphia Inquirer on Monday reported extensively about Senate Minority Leader Robert Mellow, D-Lackawanna, using tax dollars to pay his wife (now ex-wife) and himself rent for a district office for seven years. Click here for the full story.

The bare facts are that Mellow has used the building as his district office and campaign office since 1990 when one of his staff bought it for $90,000. Eleven years later in 2001, the building was valued at a little more than $82,000 when Brad Inc, a company half owned by Mellow's then wife, bought it for $1 (that's one dollar). After the divorce, Mellow sold the building in 2008 for $350,000. In between, taxpayers paid Mellow $200,000 in rent and currently pay $4,600 per month.

The state's Ethics Act has something to say about this in Section 1102, which defines "conflict of interest" as "Use by a public official ... of his office... for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated." Click here for the full act.

Mellow defends the arrangement by citing a Senate resolution that allows senators to rent office space from themselves. Mellow claims that the Senate resolution trumps the Ethics Act, even though Senate resolutions do not have the force of law. If Mellow's defense is allowed to stand, it turns the rule of law into the law of rules and stands the hierarchy of codes of human conduct on its head. Click here for an Inquirer editorial about that.

A Manufactured Crisis to Avoid House Rules?
The question everyone is asking is how the legislature could be so incompetent that they can't pass a budget five months after the governor's proposal hit the streets. But that question masks a more important question: Would lawmakers rather be seen as incompetent than corrupt?

As Gov. Ed Rendell and lawmakers spun their partisan and ideological webs last week, hoping to snare a majority of public opinion, the plan among House Democrats briefly was to pass the budget adopted by the Senate, SB 850. By doing so without amendment, the House could have sent the budget to the governor expeditiously. However, according to several reports, if they had passed SB 850 out of committee on Monday, they still could not vote on it finally for two weeks under a new rule requiring that much time to elapse so lawmakers and citizens can study the budget and comment on it.

Everyone knows that there will be something in the budget that will get people upset if they're allowed to see it before it's too late - gambling, transportation, WAMs, etc. There always is. So the crisis of unpaid state employees works to lawmakers' advantage. It creates the perfect excuse for suspending the rule and hiding the mischief yet again. And even if SB 850 is no longer in play, the same crisis will excuse the same gambit on whatever bill becomes the budget. You'd think they planned it that way.

The Complicity of the Courts.
Why do lawmakers have such aloof attitudes about the Constitution and the laws? Simply put, the PA Supreme Court won't enforce the Constitution or the law against the General Assembly's rules and resolutions. Consistently, the court refuses to overturn enactments that abide by House and Senate rules but that conspicuously violate the Constitution. The slots gambling law, the pay raise and many other abuses of legislative and executive power prove the point.

Similarly, the State Ethics Commission has been hamstrung. In addition to being chronically under-funded, its victories in court often are undermined when the courts refuse to publish the decisions. This denies the SEC the ability to cite the cases as precedent, causing them to go to court again and again with the same issues.

What can we do?
The Mellow Scandal has created the opportunity for a close look at the Ethics Act with an eye toward strengthening its enforcement and penalties. Courts can be required to publish opinions. There can be penalties that act as deterrents instead of incentives. The legislature can create a dedicated source of adequate funding. And citizens can begin to regain confidence in their government.

Which lawmakers will make that happen?

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