McDaniel opinion gives legislature control over its own ethical rules | Arkansas Blog

Tuesday, January 13, 2015

McDaniel opinion gives legislature control over its own ethical rules

Posted By on Tue, Jan 13, 2015 at 11:43 AM

Outgoing Attorney General Dustin McDaniel delivered a parting gift to legislators Monday with an opinion on how to reconcile two new amendments to the Arkansas Constitution.

In short: His opinion would appear to give the legislature final authority over rules of ethical conduct, despite Amendment 94's effort to do just the opposite.

Problem: voters approved two somewhat contradictory amendments.

One was Amendment 92, the terrible amendment that gives the legislature the power to approve rules of any state agency before they take effect.

The other was Amendment 94, a multi-part amendment that, among others, empowered the state Ethics Commission to promulgate rules to enforce new ethics provisions. These include the end of gifts of any value to legislators; the end of corporate campaign contributions, and a longer cooling-off period before a legislator can become a lobbyist.

McDaniel's opinion concludes the legislature can exercise oversight over the Ethics Commission. He notes that Amendment 94 allows the legislature to change the ethics amendment by majority vote, unlike the super majority vote normally required for voter-approved measures. 

I find no basis, in short, for any implied suggestion that the people, in adopting Amendment 94, intended to invest the Ethics Commission with what they deemed a necessary autonomy in the adoption of rules and regulations. On the contrary, as reflected in the texts of both Amendments 94 and 92, the people, whether wisely or not, have invested the General Assembly with significant potential control over the Ethics Commission’s rulemaking authority. Should it elect to exercise such control in this instance, the General Assembly of course will remain constrained by an obligation disinterestedly to promote implementation of the Amendment 94 ethical strictures. As noted above, however, the General Assembly remains free to amend the substance of those strictures by supermajority vote. 

Let's boil this down: Dustin McDaniel says the foxes may guard the henhouse.

Is this what voters intended? Would this interpretation stand up in court.

Questions, questions. The only answer is that legislators have already found ways to make a spiritual mockery of the new amendment. See them at the free ASU cocktail party this afternoon if you'd like to ask one of them about it. But, sorry, you won't be allowed to attend.

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