Editor’s Note: If you’re looking for information about any of the other proposed amendments which will appear on Nebraska ballots statewide on November 6, click HERE.
Nebraska voters should reject Proposed Amendment No. 1 …
BUT – the opportunity for a serious wake up call should NOT be overlooked in considering our recommendation.
The bullet-point version:
The Proposed Amendment…
- Fails in every way to meet the necessarily high standard that should apply to any changes proposed to a constitution
- Provides vague and broad additional powers to one body of government (the State Legislature) and as its sole protection, is essentially a “trust us” pledge regarding potential abuse
- Is not necessary – there are already too many poorly written laws on the books on the same subject, which are very unevenly applied – and those should be addressed separately
- Introducer has openly admitted that politicians are already subject to harassment by existing laws and defaults as comfort, again, to “trust me / us”
- Has unintended and potentially intended – but not stated – consequences which could mean the use of power against political enemies
- Seems to have one sole supporter whose motives are necessarily questionable, considering the contradictory and senseless statements he has made publicly
- Should cause voters to question much more strenuously just WHAT is going on in Nebraska politics, campaign finance, and enforcement to cause a sitting State Senator to claim that individuals who clearly and willfully violate existing laws, can “get off scott free” when they do so
- Dismisses Nebraska citizens as part of the body politic in pressuring corrupt officials to step down from office, if / when they don’t do so on their own
The details regarding our reasoning…
“All civil officers of this state shall be liable to impeachment for any misdemeanor in office.”
District 28 Senator Bill Avery has stated repeatedly since 2007, that his proposed change to Nebraska’s Constitution is a necessary measure to “close a loophole” in existing law, which he asserts has the following impact:
- Candidates who win their offices in some way through purposeful violations of campaign finance laws “get off scott free”
- Existing Constitutional provisions for impeachment are limited to conduct by a civil officer while in office, not while running for office
Senator Avery originally proposed the change in 2007, re-introduced it in 2011, and succeeded in getting it passed, as LR19CA, in 2012. Following a minor amendment to the resolution’s language by the legislative committee which had jurisdiction, the proposed amendment would change Article IV, section 5, to read as follows:
“A civil officer of this state shall be liable to impeachment for any misdemeanor in office or any misdemeanor in pursuit of such office.”
Seems “law and order”…right?
Nebraska voters, history seems to show, are supportive of measures which appear to have a “law and order” aura about them. Proposed Amendment No. 1, in a drive-by reading, might understandably cause we law-and-order types to say, “OF COURSE, civil officers (some kind of elected official) should be held to a high standard of conduct both before and while in office…sounds good to me!”
Reining in politicians…always good…isn’t it?
In addition, sentiment toward politicians, generally, is, to say the least, not high, and hasn’t been for some time. If long-running public opinion polls conducted by Gallup or Pew, about honesty and ethics within various “professions”, or trust in government, are any indicator, public opinion about politicians and the governments they run have been at historic lows[1. Perhaps the only mitigating factor is that public opinion towards state governments is higher than those regarding federal governments, and, in addition, Republican voters seem to have a more favorable opinion toward state governments run by GOP officials, which means, considering the number of Republican voters in Nebraska and GOP elective office holders in the Executive and Legislative branches, voters may be less inclined than in other states to believe additional limiting measures are necessary.].
In other words, voter support for any measure which seems to rein in politicians, especially candidates for elective office, and ensure punishment for misconduct, has an even higher likelihood to appeal to voters going to the polls in less than two weeks.
Upon examination, however, we conclude that there are many problems, and therefore:
Voters should reject Proposed Amendment No. 1 by filling in the “AGAINST” oval on their ballot, because:
Amendment 1 fails almost every one of the criteria we articulated in a recent article as necessary for meeting the high bar that should exist for making changes to any Constitution AND it has several troubling aspects.
1. As a principle, one should always be wary of constitutional amendments, if other solutions might be available.
2. The Amendment further empowers a government entity – and therefore demands an even higher bar.
Specifically, it empowers Nebraska Legislators to impeach state level civil officers such as Board of Regents members, the State Treasurer, the Governor, and, presumably, State Senators. Changing provisions which provide such power should be very carefully scrutinized lest we throw the necessary balance of power out of whack.
3. Amendment No. 1 is not truly necessary – there are other solutions for “the problem”.
Despite statements from Senator Bill Avery, individuals who violate campaign finance law in Nebraska in pursuing elective office, do not “get off scott free”, or, it is definitely more accurate to state, there are many laws currently available which provide myriad opportunities for punishing the many, many violations of law that could occur.
- Is pages and pages of regulations, rules, filing requirements, etc. governing almost anyone and everyone who goes anywhere near politics, political issues, the legislature, etc.
- Requires the payments of various filing fees
- Defines many violations and penalties associated with non-compliance, whether deliberate or otherwise
- Specifically assigns levels of civil misdemeanors (most are Class III, IV, V) to violations
- Provides a “trigger” mechanism for required reporting to appropriate criminal prosecution authorities
- Explicitly acknowledges the concurrent jurisdiction (overlapping) of the Act with criminal prosecution authorities
- Provides for the Nebraska Accountability and Disclosure Commission (NADC), which has many powers, including investigatory, subpoena, hearing, etc. to execute the many provisions in the Act
In addition to provisions in the Political Accountability and Disclosure Act:
- The Nebraska Attorney General and County Attorneys, are empowered by other existing laws, to determine whether to pursue criminal prosecution in many cases of misconduct
The bottom line is, anyone who violates campaign finance laws, in small and big ways, according to all the power available to authorities in the state, are subject to a lot more than “getting off scott free”.
4. Potential consequences – whether unintended or intended (but not stated) are troubling
An article in the Omaha World-Herald on Friday, October 12, 2012, illustrated starkly that Bill Avery’s introduction of and reasons for LR19CA make very little rational sense. OWH reported the following sentiments of one former Nebraska State Senator:
“Amendment 1 could open the door for political mischief. White fought the idea in the Legislature when it was proposed in 2007. With the change, he said, minor technical violations of campaign finance laws could be used to target politicians. Even if charges could not be proven, they could be used to harass officeholders.”
It should trouble voters that Bill Avery responded to White’s assertions as follows:
“Avery said such harassment could occur now and he would not expect an increase in impeachment proceedings because of the change.”
We must ask: Well, which is it Senator Avery? Can impeachment proceedings for these violations be brought under current law, as you describe, or must we have a constitutional amendment to address the issue, as you also describe?
Note that the former legislator quoted was Tom White, and note further, how much we must believe in what we are saying in order for us to find ourselves using his statement…broken clocks, twice a day…you get the picture.
Tom White is right to be concerned that this amendment could lead to a wave of impeachment calls; election law has become so convoluted and arcane, any candidate is vulnerable to violation of some rule or another. In today’s political climate there is no doubt that minor unintentional technical violations of obscure campaign reporting law will be used by losing parties to attempt to remove winning parties from office.
Avery contradicted himself and common sense, when he said in one breath that current law is inadequate and must be remedied by constitutional amendment, and in the next breath said that the type of political harassment concerns raised by Mr. White can occur under current law.
Additionally, the argument that such harassment can occur under current law is hardly justification for permanently enshrining those opportunities for abuse in the state constitution as well.
What should disturb us all:
The current statutory scheme on the books is a paradoxical MESS which don’t do much to address a large number of problems but at the same time, can be and have been used precisely as Tom White alleges and Bill Avery admits – to harass people involved in any way in politics.
- The statutes create a plethora of potential violations
- The application of regulations, however, is open to vast and subjective discretion of a commission of political appointees
- The actions of those appointees occur almost entirely out of sight, and appear to have no independent oversight
- In reality, the statutes are VERY UNEVENLY APPLIED
Also paradoxical because…
- Despite the sea of language, statutes are written in ways that protect the political elite
- Most of the problems in Nebraska campaign finance – and there are more than many people have any awareness about – are not considered “violations”, even though voters would, we believe, be very shocked if they understood what actually goes on
5. Inexplicably, a number of Senators expressed doubt and concern over the vague language of Avery’s proposed amendment, but they voted it through to appear on our ballots in lock step: 45 AYES, 0 NAYs, and 4 PRESENT AND NOT VOTING.
WHY do Nebraska’s Legislators vote so often in overwhelming numbers for legislative measures, including Constitutional Amendments? Voters should wonder how it can be that in a body of 49 people, there is not more dissent, not more debate. Shouldn’t there be when we are going to change our Constitution?
A read of the Floor Debate Transcript on March 1, 2012, just before LR19CA is tragically amusing, for many reasons. For those who wish to gain insight into how the Unicameral works, we will simply state, it is worth the read (Debate begins on page 42) and leave it at that.
6. Senator Avery, from what we can tell, is the sole advocate for this measure.
We find that…
- He is either misleading people in declaring that candidate violators “get off scott free”;
- Doesn’t wish to tackle what he believes is a corrupt enforcement system for reasons that aren’t clear;
- And / Or He is unwilling to admit that he simply wishes to further empower the Nebraska Legislature, for various reasons
We believe the question must be asked: Is this measure a Democratic ploy to be used in future against the overwhelming Republican super-majority? And, considering the doubts expressed by Senators on the floor, what deals were cut behind closed doors at the Unicameral to garner so many votes?
“Trust me” government should be rejected, especially when it dismisses the people:
- Avery embraced “trust me” government in attempting to allay concerns of his peers – they should not worry about the abuse of the power granted by his proposal – legislators and judges are above such petty considerations.
- Avery entirely dismisses an entire class of Nebraskans – the people. IF a sitting elected official is subsequently discovered to have violated Nebraska law while running for the office, and IF that violation is deemed by the people to be deliberate and negligent, shouldn’t the pressure of constituents, if the sense of propriety and morality of the official not suffice, cause that official to resign from his position?
- NONE of the State Senators, in any of the transcripts from official proceedings, nor in the OWH article, mention this subject, at any point.
- We find Avery’s complete neglect of Nebraska’s citizens in his consideration of consequences to be sublimely ironic, considering the very same man made such noise earlier this year about the many virtues afforded the people of Nebraska by the Unicameral legislative system, noting that it was a, “…a dream to create a legislature that would embrace public participation in government and reduce the quiet deal-making of bicameral legislatures where special interests and lobbyists often carried the day.”
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