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EC Selection: Nonpartisanship and Independence
Monday, June 13th, 2011
Robert Wechsler
Last week, Wisconsin taught us the lesson that even when you go to great lengths
to ensure a nonpartisan, independent ethics body, there will be
politicians who accuse it of being partisan when it makes decisions
against their interests. The good thing is that, when the body is truly
nonpartisan and independent, these politicians look ridiculous. But often there is a serious confusion among nonpartisanship, bipartisanship, and independence with respect to the selection of ethics body members. It is important to understand the distinctions among them.
According to an article last week in the Milwaukee Journal-Sentinel, it was just four years ago that the state legislature set up a Government Accountability Board to handle elections and ethics matters. To select its members, all former judges, a nominating committee of four appellate judges was created. The nominating committee is chosen literally from a hat. The next step is that the governor chooses at least two of the judges nominated by the nominating committee, and then the legislature has to approve them by a 2/3 vote for them to be appointed. All but two legislators approved this attempt to keep politics out of the selection process, so that the state would have one of the most nonpartisan, independent election bodies in the country.
But now recall is the big news in Wisconsin, and the GAB has approved recall petitions against members of one party faster than petitions against members of the other party. And the senate majority leader is accusing of the board of partisanship, even though, of the six members, three are known to have been of the majority leader's party when they ran for public office, and the party affiliations of the other three are not known.
Independence
There are three similar issues that seem to be confused here. The most important issue is not really being mentioned at all: independence. Independence of an ethics body requires a selection process in which elected officials are not involved. The Wisconsin process does not ensure independence, because many of the nominating judges, as can be seen by the GAB's makeup, will have been elected officials, were all put in their position by a governor, and often have close party ties. In other words, judges are not necessarily the best people to have choosing members of an independent body.
The involvement of the governor and legislature appears to be less of a problem, since they have to accept judges chosen by the nominating committee. But their involvement can cause problems if (1) one party holds out for a party member, (2) the parties together hold out for active party members as opposed to independents, or (3) the governor or legislature uses their power of approval to leave seats open (a) to make it hard for the GAB to get a quorum or (b) to preserve the current party majority on the board, which might otherwise be jeopardized. In addition, the governor or legislature can use their power to effectively force the nominating committee to select the judges they prefer. For local ethics bodies, replace "governor" with "mayor" and "legislature" with "council."
Approval by officials under a body's jurisdiction should be nothing but a formality. Disapproval should be only for cause, and a failure to approve after thirty days should be considered approval.
Nonpartisanship and Bipartisanship
The second issue is nonpartisanship, which is too often confused with bipartisanship. Bipartisanship means ensuring that both major parties are represented on a body, usually with the majority party having a narrow majority. This is a terrible policy for an ethics body, because this usually means the exclusion of members of minor parties as well as those who can be the most neutral on issues involving partisan officials: independents. Any selection process that excludes independents is intended not to gain the public's trust, but to extend party power into places it does not belong.
Nonpartisanship can itself mean two things. The common idea of nonpartisanship is that individuals do not run as a member of a party. But this does not mean that they cannot be active in a party, or use a party to gain support. The other sense of nonpartisanship is that individuals be selected without respect to their party affiliation and, as far as possible, individuals who have been active in a party not be selected.
One problem with selecting judges is that, as unbiased as judges are supposed to be in their work, they usually have been active in a party. That is usually how they attract a governor's support. This can be seen from the Wisconsin situation, where three of the six judges on the GAB were formerly partisan elected officials. A selection process that allows former elected officials to put former elected officials on an election or ethics body is not a nonpartisan process. Nor is it a bipartisan process, because all the GAB members could be from one party or the other. Nor does it ensure or create the appearance of independence, because former officials are seen to favor their former colleagues, especially those from their party.
The only way to ensure a nonpartisan, independent body is to have its members selected by individuals or, better, organizations that have no partisan affiliation, and who are asked, or are required, to select independents, minor party members, and people who have never run for office or been involved in partisan campaigns.
Robert Wechsler
Director of Research-Retired, City Ethics
---
According to an article last week in the Milwaukee Journal-Sentinel, it was just four years ago that the state legislature set up a Government Accountability Board to handle elections and ethics matters. To select its members, all former judges, a nominating committee of four appellate judges was created. The nominating committee is chosen literally from a hat. The next step is that the governor chooses at least two of the judges nominated by the nominating committee, and then the legislature has to approve them by a 2/3 vote for them to be appointed. All but two legislators approved this attempt to keep politics out of the selection process, so that the state would have one of the most nonpartisan, independent election bodies in the country.
But now recall is the big news in Wisconsin, and the GAB has approved recall petitions against members of one party faster than petitions against members of the other party. And the senate majority leader is accusing of the board of partisanship, even though, of the six members, three are known to have been of the majority leader's party when they ran for public office, and the party affiliations of the other three are not known.
Independence
There are three similar issues that seem to be confused here. The most important issue is not really being mentioned at all: independence. Independence of an ethics body requires a selection process in which elected officials are not involved. The Wisconsin process does not ensure independence, because many of the nominating judges, as can be seen by the GAB's makeup, will have been elected officials, were all put in their position by a governor, and often have close party ties. In other words, judges are not necessarily the best people to have choosing members of an independent body.
The involvement of the governor and legislature appears to be less of a problem, since they have to accept judges chosen by the nominating committee. But their involvement can cause problems if (1) one party holds out for a party member, (2) the parties together hold out for active party members as opposed to independents, or (3) the governor or legislature uses their power of approval to leave seats open (a) to make it hard for the GAB to get a quorum or (b) to preserve the current party majority on the board, which might otherwise be jeopardized. In addition, the governor or legislature can use their power to effectively force the nominating committee to select the judges they prefer. For local ethics bodies, replace "governor" with "mayor" and "legislature" with "council."
Approval by officials under a body's jurisdiction should be nothing but a formality. Disapproval should be only for cause, and a failure to approve after thirty days should be considered approval.
Nonpartisanship and Bipartisanship
The second issue is nonpartisanship, which is too often confused with bipartisanship. Bipartisanship means ensuring that both major parties are represented on a body, usually with the majority party having a narrow majority. This is a terrible policy for an ethics body, because this usually means the exclusion of members of minor parties as well as those who can be the most neutral on issues involving partisan officials: independents. Any selection process that excludes independents is intended not to gain the public's trust, but to extend party power into places it does not belong.
Nonpartisanship can itself mean two things. The common idea of nonpartisanship is that individuals do not run as a member of a party. But this does not mean that they cannot be active in a party, or use a party to gain support. The other sense of nonpartisanship is that individuals be selected without respect to their party affiliation and, as far as possible, individuals who have been active in a party not be selected.
One problem with selecting judges is that, as unbiased as judges are supposed to be in their work, they usually have been active in a party. That is usually how they attract a governor's support. This can be seen from the Wisconsin situation, where three of the six judges on the GAB were formerly partisan elected officials. A selection process that allows former elected officials to put former elected officials on an election or ethics body is not a nonpartisan process. Nor is it a bipartisan process, because all the GAB members could be from one party or the other. Nor does it ensure or create the appearance of independence, because former officials are seen to favor their former colleagues, especially those from their party.
The only way to ensure a nonpartisan, independent body is to have its members selected by individuals or, better, organizations that have no partisan affiliation, and who are asked, or are required, to select independents, minor party members, and people who have never run for office or been involved in partisan campaigns.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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