By Nicholas Kusnetz, Center for Public Integrity
SANTA FE — On February 20, New Mexico’s House Energy and Natural Resources Committee gathered for one of its regular meetings in a drab room here at the capitol, a circular building known as the Roundhouse. On the agenda: a bill that would hike fees and penalties for energy companies drilling wells in the state.
The votes fell along party lines, with five Republicans lining up against the bill and the committee’s Democratic majority voting to send the legislation to the House floor. The Republicans argued the bill would stifle business and cost jobs, and for one lawmaker, the issue hit particularly close to home. Rep. James Strickler spends most of the year running his own small oil and gas production company, JMJ Land & Minerals Co. The bill would directly affect his profits.
Strickler, a 58-year-old from the sparsely populated, gas-rich northwest corner of the state, speaks with a gentle western drawl. In an interview after the committee vote, he said the bill would put New Mexico’s regulations out of line with those in other states. Ultimately the bill was voted down on the House floor, and Strickler was among those voting ‘no.’ Over seven years in office, Strickler has been a staunch advocate for his own industry and has twice introduced legislation to reduce the amount of renewable energy that utilities must purchase. He has never recused himself from a vote on energy issues, he said, even when it directly affects his bottom line.
“I don’t think it’s a conflict of interest,” Strickler said. “I think it’s a blessing that a few of us have some understanding of that industry.”
New Mexico’s legislature meets for just 60 days each odd year and 30 days in even years. Lawmakers earn a $154 per diem payment while in session, but they receive no salary. These men and women are true citizen legislators, and unless they are retired or wealthy, they must find another way to earn a living. While all other states pay legislators at least a small salary, only ten state legislatures approach full-time status. The rest are part-time, and most lawmakers hold regular jobs the rest of the year.
As a result, situations like Strickler’s are the norm; insurance agents vote on insurance bills, doctors vote on health care bills and school administrators vote on education funding bills. Illinois House Speaker Michael Madigan is also a partner at a prominent property tax law firm and has used his office to shape legislation and push state contracts that have sent millions of dollars to clients of the firm. Utah state Rep. Johnny Anderson, who runs for-profit day care centers, has pushed to change the state’s child care laws to benefit businesses like his; he told local reporters that all part-time legislators have conflicts. A 2010 review by the Deseret Morning News found that two out of three Utah legislators had introduced a bill that created a potential conflict with their private employment. In extreme cases, some lawmakers head groups that lobby the legislature, or even work as lobbyists themselves.
“It’s an absolute problem,” said Ben Bycel, a lawyer who used to run the ethics commissions in Los Angeles, and later, Connecticut. Bycel said many states do not pay legislators enough to discourage them from using their office for personal gain. In Connecticut, where Bycel worked from 2006-2007, he said many legislators’ outside employment was clearly a benefit of their public office. “Many of them were involved in situations [in which] they would not have had the job, they would not have kept the position, unless they were legislators. The reason why they were given the position was because someone up there thought they could do a good job for whatever industry it was.”
Advocates of part-time legislatures say they bring real-world experience to government and discourage the type of corrupt politics that can plague career politicians. But the system raises obvious conflicts of interest. States try to juggle these roles by requiring that lawmakers disclose their sources of income—which all but three states do—and by limiting what lawmakers can vote on—which 40 states do to at least some extent, according to the National Conference of State Legislatures. Generally, lawmakers are supposed to recuse themselves from votes on bills that would give them a direct financial benefit, but it is often up to the legislators themselves to make that determination.
Many states, however, lack the combination of clear rules and strong enforcement that might ensure conflicts do not become real problems. While 41 states have some form of ethics oversight body, a review last year found many of those bodies to be weak and ineffective. The review, a state-by-state ranking of ethics and accountability carried out by the State Integrity Investigation, a collaboration of the Center for Public Integrity, Global Integrity, Public Radio International and members of the Investigative News Network, including Broward Bulldog. The project gave grades of D or F to 28 of the state ethics agencies.
In New Mexico, there is no independent body for legislators to turn to for advice or to enforce the state’s ethics laws. While legislators are instructed not to use their office for private gain, lawmakers and government watchdogs say it is essentially up to individual legislators to decide whether a conflict exists, and whether they ought to recuse themselves from a vote.
Dede Feldman served as a Democrat in the legislature for 16 years before deciding not to run for re-election last year. She was a long-time advocate for creating an independent ethics commission, but she grew tired of legislative gridlock, and particularly frustrated with the lack of progress on ethics. She said lawmakers rarely recuse themselves, and that conflicts of interest have become so ingrained in the legislature that they rarely draw attention. “People have come to accept conflict of interest from legislators as the way we do business here,” she said.
The Roundhouse consists of four circular hallways stacked on top of each other like doughnuts, with an open rotunda where the hole would be and offices lining the outside of the ring. The fourth floor hosts the governor’s office, which this winter featured an exhibit of the state’s prominent chile pepper industry that posed New Mexico’s basic existential question: Red or Green? The legislative chambers sit on the lowest level, underneath the floor of the rotunda. Lawmakers’ dress ranges from casual suits and blouses with New Mexico flare like the bolo tie, to the power-broker business suits common in Washington, D.C.
John Ryan sticks to the formal end of the scale. The Republican senator matches well-tailored suits with neatly parted chestnut hair. He’s represented parts of Albuquerque and its suburbs since 2005, and spends the rest of the year working as a federal lobbyist. His clients last year included a town in eastern New Mexico, a public water utility and two electric transmission and generation companies that operate in the state. According to data compiled by the Center for Responsive Politics, they paid Ryan $240,000 last year to represent their interests in Washington.
Ryan is not registered to lobby in New Mexico, but he has voted on bills involving some of the same issues he lobbies for in Washington. Last year, he voted on a tax bond measure that funded dozens of projects across the state. One of items in the measure sent $278,000 to build a wastewater pipeline in Clovis, NM, which paid Ryan $40,000 last year. Ryan’s contract with Clovis cites a similar project on his to-do list. The same bond measure contained $210,000 for the Eastern New Mexico Water Utility Authority, which paid Ryan $80,000 last year, according to federal records. Over the past few years, Ryan voted on several other bills that either helped finance or otherwise affected his clients.
Ryan has recused himself from some votes, including a committee vote in February on a bill that would affect electric transmission projects, and he does not generally sponsor bills that would benefit his clients. But the various relationships have led some veteran statehouse-watchers to say Ryan has gone too far. Leanne Leith, the political and programs director for Conservation Voters New Mexico, said she thinks Ryan should not have voted on the tax bond measures, even though other projects were included in the bills. “Where is that line?” she said. “If you’re passing a bill where three of the four clauses affect your clients, but the fourth doesn’t, do you say you were voting on that fourth piece?”
Ethics experts outside the state have reacted more strongly. “That’s outrageous,” Bycel said, after having Ryan’s situation described to him. “Legislators should not also be lobbyists.”
Ryan declined repeated requests for an interview. His arrangement raised few concerns in New Mexico until recently, when the Santa Fe Reporter profiled a complaint against Ryan with the Secretary of State brought by Joe Carraro, who lost to Ryan in the 2012 general election. Carraro served in the legislature as a Republican for two decades until 2009. Five years ago, he was accused of conflicts himself after he requested appropriations for school field improvements that eventually led to contracts for an artificial turf company that had hired him as a consultant. Carraro denied knowing that the appropriations would eventually lead to work for the company.
The essence of Carraro’s complaint was that Ryan had run afoul of the state’s conflict of interest laws with his votes and that he was lobbying within the state without registering. In December, the Secretary of State’s office sent Carraro a letter saying that based on his allegations and a response from Ryan, it did not find “sufficient evidence” of a violation of ethics laws. Even after the report, some people in the Capitol do not seem surprised by the details of the case and point to several similar examples.
Sen. Daniel Ivey-Soto, a Democrat, is executive director of the New Mexico County Clerks group, and for years lobbied the legislature on the group’s behalf until he was elected last year. While he no longer lobbies, he still runs the group and has even sponsored a bill, which updates marriage license procedures, that he helped draft as a lobbyist.
“I am the most knowledgeable person in the building on this issue. I’ve been dealing with this for three years,” he said. “What sense does it make to say, oh, let me give this to somebody who doesn’t know a thing about it.”
Sitting in a meticulously organized office, with a map of the 15th Senate district on the wall, Ivey-Soto said his work as executive director is not evaluated on the basis of legislative success. He also said he would recuse himself from any bill that could affect his compensation.
Mark Moores, a hulking, former college football player now serving his first term in the Senate as a Republican, is also the head of the New Mexico Dental Association, which has its own legislative agenda. The group has lobbied against a bill this year that would expand the work of dental therapists, and Moores said he will vote on the measure and sees no conflict.
“I don’t have a financial interest in if that bill passes or not,” Moores said. Because he is not a dentist and has no practice, Moores said the bill poses no direct financial concern for him. “But I have more expertise in that area than anyone else in this legislature because I’ve studied it, I know the issue. And if people ask me questions about it, I’m willing to share.”
Viki Harrison, executive director of Common Cause New Mexico, said Moores should recuse himself from voting on the dental bill. But she pointed out that the vote is only a small part of the problem. “I’m going to tell you what happens in a citizen legislature. Other senators are going to look to him for direction because they just got slammed with a thousand bills in 30 days,” she said. “It’s not like every legislator has their own bill analyst to help them out.”
State by state
The situation is hardly exclusive to New Mexico. Ben Kieckhefer, a Republican state Senator in Nevada, is also the director of corporate communications for a Las Vegas law firm. In 2011, he told the Reno Gazette-Journal that he talks with the lobbyists at his firm so he knows what they are working on. “We need to make sure I have a clear understanding of what they’re testifying on so I don’t have a conflict of interest I don’t know about,” he said.
Last year, the government watchdog group Integrity Florida examined lawmakers’ financial disclosure forms in that state and discovered that at least 11 legislators earned money from firms that lobby the legislature. Only two of the 11 reported potential conflicts of interest on votes, and only five listed their clients. Dan Krassner, the group’s executive director, said there were large inconsistencies in financial disclosure reports and that many were filed late or were not filed at all.
“Certainly, there’s an appearance that legislators and other officials that have clients are in a position to help their clients with little oversight,” Krassner said. He said the state’s conflict of interest rules are weak, and that financial disclosure is insufficient. “Too many officials are using their office for private gain.”
David Freel, who used to run Ohio’s Ethics Commission and now teaches ethics at Ohio State University’s Fisher College of Business, said that working for a lobbying firm, while not banned in many states, lies at the edge of what is appropriate in a part-time legislature. “I think it creates an exceptional caution and risk signal to have a legislator be both a legislator and a lobbyist simultaneously,” he said. “Because then the question is, what is the separation?”
A fine line
The general rule of thumb in New Mexico and most states is that lawmakers ought not to vote on bills that affect them in particular, but that they are free to work on bills that affect an industry of which they’re a part. Most ethics experts say it’s difficult to write rules that are any more restrictive without having problematic side effects, such as precluding anyone except the independently wealthy from serving.
Alan Rosenthal, an expert in state government and legislative ethics at Rutgers University, said he’s in favor of banning dual office holding—when legislators hold a second public job such as sitting on an administrative board—and also supports preventing lawmakers from working as lobbyists or in other political fields. But he said overly restrictive rules would have unintended consequences. “The alternative there is to start trying to restrict the ability of legislators to participate because of where they earn their income,” he said. “The problem there is that you’re limiting the representation that your constituency gets.”
The problem becomes complicated when a lawmaker, as is often the case, works in a field in which he has clients who deal with government contracts and regulation. “If he’s an insurance salesman, if he’s a lawyer, if he’s in any of these kinds of fields,” Bycel said, “you bet he’s going to have clients and customers who want something from him as legislator.”
Illinois’ House Speaker Michael Madigan is an extreme example. In a series of articles over the past few years, the Chicago Tribune reported on several cases in which Madigan, a Democrat known for his tight control of the legislature, pushed bills and contracts that reportedly steered millions of dollars to clients of his firm, Madigan & Getzendanner. In 2009, for example, Madigan helped secure $18 million in state funds for a highway interchange that a coalition of businesses had been promoting for years. Two of those businesses had hired his firm. In 2005, months after his firm was hired by a company that owns nursing homes, Madigan and the House made permanent a program that funded assisted living homes for the poor. The Tribune reported that the move unlocked millions of dollars in investment money for the company, Pathway Senior Living LLC, and allowed it to nearly double its number of facilities and collect tens of millions of dollars in additional federal and state funds.
One Tribune columnist called Madigan a “walking conflict of interest.” An editorial said that he had weakened bills affecting banks, nursing homes and pharmacies that had hired his firm, but noted there was no “smoking gun” indicating that Madigan had violated any ethics rules. “You don’t need an ethics expert to deduce that something is very wrong in Illinois.”
Steve Brown, a Madigan spokesman, said none of the companies in question had hired Madigan’s firm in order to secure contracts or funds. He said that Madigan has not violated any laws, and that he complies with a personal code of conduct that says nothing he does in his public work will benefit him or his firm privately. “The most important thing is the end conclusion, that at no point did they demonstrate that Mr. Madigan used his pubic office for private gain,” Brown said.
Illinois’ Gov. Pat Quinn this year proposed explicitly prohibiting legislators from voting on issues where a conflict might exist. It’s unclear what exactly Quinn would qualify as a conflict, however, and a spokesman from his office did not answer specific questions on the proposal.
Maryland has a long history of similar dealings, said James Browning, regional director for state operations at Common Cause. In 2004, the organization reviewed votes and financial disclosures in Maryland and found that 50 legislators had sponsored 127 bills that affected their employers.
More recently, the state Senate censured Sen. Ulysses Currie last year for failing to disclose nearly $250,000 in consulting fees he earned from a grocery store chain, even as he helped the company win concessions with the state. Months earlier, a federal jury had acquitted Currie on charges stemming from the scandal; members of the jury said they felt Currie’s indiscretions fell short of criminal behavior. In the wake of the Currie scandal, Maryland lawmakers passed a bill requiring themselves to post some conflict of interest disclosure forms online, but they did not require that full financial disclosures be posted.
“The practice of pushing these bills to help your employer or yourself is pretty widespread,” Browning said, “and for the most part allowed under the rules.”
In many states, the concept of a full-time, professional legislature is a non-starter. In North Dakota and Texas, for example, lawmakers meet every other year. Many lawmakers in New Mexico say a citizen legislature brings a diverse group to the capitol with “real-world” experience.
“The writers of our constitution did not want a professional legislature,” said Moores, the first-term senator in New Mexico. “They wanted people coming in from the four corners of our state with different backgrounds.”
Robert Stern, who helped write California’s conflict of interest laws in 1974 and went on to work for the state’s ethics commission, said part-time legislatures bring a broader perspective to government and can actually reduce lawmakers’ reliance on campaign contributions. If legislators rely on other jobs for their incomes, he said, they may be more willing to alienate donors because serving in office is just one part of their professional life. Attempts to make legislatures full-time have gathered little support in Florida and Texas, and some people have pushed to shorten sessions in California, Michigan and Wisconsin.
But some experts and lawmakers say part-time legislatures harbor systemic flaws. Sen. Gerald Ortiz y Pino, an Albuquerque Democrat and retired social worker, supports giving New Mexico’s legislators a salary. He said the brief legislative sessions mean lawmakers do not have enough time to wade through a wave of more than a thousand bills introduced each session. The problem is compounded by the fact that they do not have staff to help analyze legislation. The situation creates reliance on lobbyists—and their gifts—to help lawmakers sort out the details of legislation, he said. Ortiz y Pino and others also argue that rather than broadening its scope, a part-time legislature actually limits who can serve, because most people cannot afford to take two months away from full-time jobs.
“Having a citizen legislature sounds good on the surface,” Ortiz y Pino said, but the problems associated with it are “enormous.”
Browning of Common Cause said the problem has grown worse as Congress has given greater discretion to the states over how to spend federal money through block grants. The move has shifted more work from Washington to state capitols, he said, but states have not kept pace by devoting more resources to their legislators. “If you consider how much is at stake, how much money is being carved up by budgets and in these committees and how little is being invested in these people in salaries and in resources,” Browning said, “it’s hard to argue that we’ve set up a system to get the best and the brightest and have them fight for their constituents.”
Conflicts of interest have simply become part of the system in many states, experts say, where legislators earn little pay and have no effective oversight. In New Mexico, disclosures are inconsistent and are not audited. And without an independent ethics commission, oversight and enforcement simply does not work, said Harrison of Common Cause New Mexico. People can submit complaints to the Secretary of State, which rarely pursues ethics investigations, or to a number of legislative committees. Those committees have received about half a dozen ethics complaints since 2005, but have not found probable cause in any of them. “From our perspective, there’s really very, very little ethics oversight, and there are very few rules,” Harrison said.
The same could be said for many other states, where ethics agencies remain weak and under-funded, if they exist at all. Experts agree that independent oversight and strong disclosure rules are critical to preventing conflicts, as is paying legislators an adequate salary. But even under the best laws, conflicts are an inherent part of the system —and that issue can’t be squared, certainly not at the Roundhouse. “In some ways it’s an indictment of part-time legislatures,” Browning said. “This will always be a problem.”