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LEGISLATIVE WEEK IN REVIEW
July 21, 2006
Vajda: Eszter Vajda, Host
McCullen: Kelly McCullen, Legislative Week in Review
Henry: Johanna Henry, Legislative Week in Review
Clodfelter: Sen. Dan Clodfelter, (D) Mecklenburg Co.
Berger: Sen. Phil Berger, (R) Minority Leader
Phillips: Bob Phillips, NC Coalition for Lobbying Reform
Hackney: Rep. Joe Hackney, (D) Majority Leader
Ross: Rep. Deborah Ross, (D) Wake Co.
Allred: Rep. Cary Allred, (R) Alamance Co.
Howe: Barbara Howe, Former Libertarian Gubernatorial Candidate
Brock: Sen. Andrew Brock, (R) Davie Co.
Rand: Sen. Tony Rand, (D) Majority Leader
Insko: Rep. Verla Insko, (D) Orange Co.
Stam: Rep. Paul Stam, (R) Wake Co.
Johnston: Chad Johnston, Exec. Dir., The Peoples Channel
Fraser: Randy Fraser, NC Telecommunications Industry Assoc.
Hunt: Sen. Neal Hunt, (R) Wake Co.
Berger: Sen. Doug Berger, (D) Franklin Co.
O’Connor: Paul O’Connor, Winston-Salem Journal
Smith: Barry Smith, Freedom Newspapers
Schreiner: Mark Schreiner, Wilmington-Star News
[BEGIN VIDEO CLIPS]
McCullen: The House and Senate consider comprehensive lobbying reform. We will explore what cable deregulation means to subscribers and digital fairness advocates. Third political parties seek ballot access law is relaxed and candidates watch campaign finance restrictions tighten. Next.
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Vajda: Hello everyone, I’m Eszter Vajda.
McCullen: I’m Kelly McCullen. Tonight we will look at how cable deregulation may affect you if you subscribe to cable TV. Also this debate over eminent domain rights in North Carolina continues.
Vajda: But we begin tonight with ethics and lobbying reform.
ETHICS AND LOBBYING REFORM
Vajda: A comprehensive ethics bill has emerged from the Senate after days and some nights of discussion. The House rejected the measure and that sets up the stage for conferees to work out a compromise before the two bodies adjourn. The measure comes as several cases are being investigated involving elected officials and lobbyists.
Senator Dan Clodfelter doesn’t hide how he feels about lobbyists.
Clodfelter: We don’t like lobbyists. They irritate us, they hound us, they chase us. They are always after us about something or other and you know it is not just again the editorial caricature of who is a lobbyist, it is everybody.
Vajda: But Senator Clodfelter says they have a right under the Constitution to lobby lawmakers. He chaired the Senate Judiciary Committee in charge of rolling several House bills into one. What emerged is House Bill 1843, 58 pages dealing with state governmental ethics.
Clodfelter: You worked diligently, you worked under circumstances where a lot of people have questioned your motives, your good faith, have questioned your judgment certainly. But you’ve never let that get the better of you, you have never let that rattle you, you have never let that detract from your commitment to doing the right thing.
Vajda: Among its provisions the bill gives more power to the State Ethics Commission and unlike the House’s version it combines the three branches of government under one independent commission. The eight-member body would be appointed by the governor, president pro temp and speaker of the House. The body would have the power to review, investigate, and make recommendations on violations. The bill also lays out guidelines for how lawmakers can or cannot use their position. It also defines conflict of interest. Lawmakers would not be allowed to use their public position for personal or financial gain. They cannot hire family members nor advertise for profit under their title. The measure does however exempt public service announcements in cases of emergencies.
The so-called revolving door would be shut for at least a while. Lawmakers would have to wait before registering as lobbyists. Under both the House and Senate versions lobbyists and their principals would not be allowed to give gifts to lawmakers except food and drinks. But the Senate added language to the House’s proposal that includes a ban on political contributions from lobbyists to lawmakers. But Senator Phil Berger says that is not enough.
Berger: There is a perception out there that a lobbyist or a principal who donates or raises a lot of money has unequal access, has an ability to get things through that an ordinary citizen or someone who doesn’t have a lobbyist or doesn’t donate a whole lot of money have an opportunity to do. And I think the fact that the perception is there and the fact that we’ve got this bill gives us an opportunity to address and hopefully to close that loophole.
Vajda: The senator tried to close the loophole by introducing an amendment that bans lobbyists from fundraising for lawmakers.
Berger: If one were to look seriously at the amount of money that is raised in various ways what you would say is that lobbyists at this point don’t necessarily give the bulk of the money that comes into campaigns. But they are to a great extent involved in the raising of money.
Vajda: But Senator Berger’s amendment didn’t even make it to a vote because a substitute amendment was introduced that only bans so-called bundling or lobbyists delivering contributions to lawmakers. That amendment passed. Still Senator Berger voted for the bill.
Berger: Hopefully what we’ve done is put forward a bill at this point that would help renew confidence that people will have about sunshine in government.
Vajda: Meanwhile lobbying reform advocates have eagerly followed the construction of the bill. Many still have concerns and questions, especially about campaign contributions.
Phillips: If you are going to restrict gifts because you think that is inappropriate, we think then you should also restrict raising again unlimited amounts of money for the candidates that again you are trying to influence.
Vajda: These and other reforms stem from recommendations by the House Subcommittee on Ethics and Governmental Reform. It was formed by Speaker Jim Black after the State Board of Elections found some irregularities in campaign contributions to the speaker and following recent activities by political groups around the state. Representative Joe Hackney is one of the original architects of the reform bills. He says several changes the Senate made raise Constitutional questions.
Hackney: And we are trying to go slow and be careful and adhere to the Constitutional law.
Vajda: For instance he says by state law the regulation of the three branches should be divided. A review commission made up of all three branches may fail the Constitutional litmus test. Banning contributions from lobbyists to lawmakers may also fall into that category. Regardless Representative Hackney says he is confident the issue will be ironed out even if it takes time.
Hackney: We will probably identify 25 to 50 issues, some of them big, some of them little and just plow in and start working through them and I am sure we will come out with a good product in the end.
Vajda: House and Senate members have appointed conferees to iron out their differences. The committee is expected to work throughout this weekend. Senator Phil Berger meanwhile sent a letter to House and Senate leadership requesting that the conferee meeting be open to the public.
QUESTION OF THE WEEK
McCullen: Lobbyists fundraising on behalf of lawmakers has been a contentious issue during this ethics debate. We want to know what you think this week; it is the question of the week: “Should lobbyists be able to raise money for lawmakers?” Email unctv.org/legweek. We will have your response next week.
McCullen: The House unanimously sends comprehensive campaign finance reform to Governor Easley’s desk. There were some points and counter-points made as to whether these restrictions and new requirements are overkill or actually politically necessary. The bill sets the cash reporting limit at $50 [House 1846]. Campaign treasurers must undergo training and political contributions made by check with a blank payee line is banned. Some lawmakers said state law already requires oversight of campaign contributions and lower reporting limits could pose some challenges; the supporters say these reforms were effective.
Ross: I think that the Senate did a nice job with these three bills; they did not make substantial changes and the folks in the lobbying reform community had no objections to the bill. The Board of Elections was consulted on several of the changes.
Allred: I don’t know why we want to make every candidate open up their records and give out the names and addresses of contributors over $50 so that some other candidate or the opponent can go fishing for names to create a mailing list.
McCullen: The provisions begin phasing in October 1st of this year.
VARIOUS BILLS
Vajda: The state may soon start a pilot program in which instant runoff voting would be used in local races. The program would include 20 counties and cities [House 1024]. The instant runoff would allow voters in local primary elections to rank their order of preference among the candidates listed. The measure aims at saving money if another election is needed. The House is expected to consider changes made by the Senate on Monday.
McCullen: North Carolina’s third political parties closely watch a bill designed to make ballot access easier for non-Democratic and non-Republican candidates [House 88]. It passed the Senate Thursday. This bill would allow third parties to stay on a North Carolina ballot if they could gain 2% of the gubernatorial Election Day vote. They currently need 10%. The bill does not lower the number of petition signatures needed to gain ballot access. That is what third parties say is their biggest hurdle.
Howe: Last time in the 2000 election we had to gather 59,000, this time it is 69,000 so every four years that number gets higher and higher.
Brock: The third parties or the smaller, the lower the threshold the more ideas that we have out there before the people. And a lot of times the major parties will adopt them if it is popular.
Rand: I think with 2% it is fine. I figure that is realistic in a number of other states and I think that we ought to stay where we are with the 2%.
McCullen: The bill sits in the House.
Vajda: The fate of lottery money and the commission in charge of it may soon be overseen by another committee. A bill to establish a lottery oversight committee is being discussed by lawmakers [House 2212]. The committee would hear reports from the Lottery Commission, the treasurer, the Department of Public Instruction and others taking part in the net revenues of the lottery. Concern over how the lottery proceeds are spent prompted the formation of this group. The nine-member committee would be appointed by the governor, Senate president pro temp and House speaker.
McCullen: Lawmakers approved the advising penalties for drivers who allow their auto liability insurance to lapse [Senate 881]. The DMV would be notified when car insurers issue new or replacement policies, terminate your policy, or reinstate your terminated policy. Drivers with lapsed liability insurance face fines beginning at $50 for a first lapse, jumping to $150 for subsequent offenses. The Senate sent the bill to the governor but they expect to introduce legislation next session that would exempt military personnel who are deployed overseas.
Vajda: Many of the state’s uninsured would get more affordable health coverage under a measure that creates a high-risk pool. The pool would guarantee coverage to patients with premiums of no more than 150% the rate of an individual covered by a normal plan [House 1895]. About 30,000 North Carolinians were qualified but sponsors say only about 10,000 people would be captured under this measure.
Insko: With the high-risk pool they will receive ongoing care, the providers will get paid something, we will—the cost of our insurance, the cost of shifting will be reduced and it will take that population of people out of the big pool of uninsured and let us deal more effectively with the people who remain.
Vajda: Funding for the program will come from several sources including the providers. Now opponents of the measure say everyone will bear the cost with higher insurance rates.
Stam: They didn’t think so much about how they are going to pay for it and what they ended up doing is a poll tax or a capitation tax, $2 for every insured person in the state, and that is about as hyper-regressive a tax as you can imagine.
Vajda: The measure is now in the Senate.
McCullen: The House will debate legislation requiring photographs of drivers who do not present identification when law enforcement officers ask for it [House 2881]. Language authorizing fingerprinting when driver ID could not be presented or is falsely presented was removed in committee. Drivers may be photographed if they violate learners’ permit laws or if a driver will not give officers identifying information following an accident. Such suspects could be photographed when they are issued tickets but are not arrested.
Vajda: Sex offenders may face stiffer penalties under legislation passed by the Senate [House 1896]. It rolls several of the House bills into a larger bill. Language was tweaked forbidding registered sex offenders from holding any job requiring the care, oversight or education of minors. Also an offender’s residence, even if they are not the owners of the home, would be off-limits for certain activities or businesses directly involving children. The Senate included language making it illegal to lie to SBI agents when questioned. By the way it is already illegal to lie to FBI and the state proposal matches that. Also law enforcement officials will be able to put GPS tracking devices on the sex offenders.
McCullen: The Senate passed eminent domain restricting legislation Thursday morning [House 1965]. The proposal forbids local governments from using eminent domain for private development as of July 1, 2006. Eminent domain decisions that benefit private development that were made before this past July 1st can still proceed. This bill sits in the House.
Vajda: Also in the eminent domain debate, Wake County Representative Paul Stam has filed for a Constitutional Amendment bill limiting eminent domain to only public projects. This week he used a procedural move to get this bill on the House floor [House 2213]. The amendment bill features over 80 co-sponsors but that has not reached the House floor, it has been stuck in the House Rules Committee over worries whether a Constitutional Amendment is necessary to prevent eminent domain seizures for private development. House rules allow a primary bill sponsor to make a motion moving a bill from a committee onto the floor. It is a motion that requires a three-fifth House vote.
McCullen: Since the Federal Telecommunications Act of 1996, telephone companies have had the right but they say they really haven’t had the desire to enter the cable TV market. But they say state legislation recently passed makes it profitable and feasible for them to set up shop here in the Tarheel State.
Vajda: Similar legislation has passed in a few states but how exactly that changes your cable bill options is still unclear. Johanna Henry plugs in some of the answers and one more note; there is nothing wrong with your television set.
CABLE DEREGULATION
Henry: Is this whole issue of cable deregulation still a little fuzzy to you? Do you wonder if your cable bill will really go down and your choices will really go up? But the answers aren’t perfectly clear just yet.
Johnston: It is going to be an interesting couple of years.
Henry: Chad Johnston is the executive director of the People’s Channel, a public access channel in Chapel Hill. PEG, or public education and government channels, are currently funded by the franchise tax; this is what cable companies pay to local governments for the right to lay cable and public right-of-ways. Future PEG funding is uncertain and Johnston is not very happy about the legislation. He says it won’t lower rates or improve service.
Johnston: Cable rates are not going down any. There is no real incentive for them to say, “Oh you are charging $34 I am going to charge $12.” No, it will be $34 and $32, something of that matter, and that is only for the first six months until everyone can slowly increase.
Henry: But a study by the American Consumer Institute, an independent consumer news and research organization, found that cable bills in Texas, the first state to pass cable deregulation, did drop. Half of the consumers who switched service providers reported significant savings in their cable bills, an average of $22.30 per month. Consumers that stayed with their original provider reported saving an average of $26.83 per month as a direct result of competition. But lower prices are just part of the picture; isn’t better service often a result of competition? Chad Johnston doesn’t think so.
Johnston: If you have two companies that are serving you poorly that doesn’t help you very much, right? Local control and local authority has worked real well for 30 years.
Fraser: We’ve got to be sharp and provide the best service and the best value for our customers because if we don’t that is going to get noticed and somebody is going to come in and try to take the customers away from us.
Henry: So according to at least one cable company, even the suggestion of competition is making them take notice. This is Randy Fraser; he is the vice president of governmental affairs for Time Warner Cable, one of the current monopoly cable technology companies in North Carolina. He is also a board member and past president of the North Carolina Telecommunications Industry Association. Contrary to what you might expect, NC Cable companies are in favor of the legislation.
Fraser: It is better for us to know today what we are going to need to be doing and make our decisions predicated on more certainty than it is to be out there 18 or 24 months from now finding out. So our view was pretty pragmatic. And we also understood from talking to legislators that this was something that they wanted to move forward on.
Henry: Telephone companies are the big backers of the legislation and they find themselves aligned with their future competitors. In a statement from BellSouth, a spokesperson Clifton Metcalf says about the legislation, quote, “It represents the important first step in bringing real competition to the cable industry. That is going to mean real choices, better prices, and better products. And it will stimulate the continued development of broad-band technology in the state,” end quote. But is access to fast internet technology a necessity or a luxury? Chad Johnston argues it is a necessity.
Johnston: Everyone should have access to fast broad-band technology in their home. So I am not comfortable saying, “Well let’s serve these neighborhoods and hopefully maybe eventually this will spread.”
Henry: And that is Johnston’s and other public interest groups’ main complaint. Under the bill new cable and information technology providers are allowed to pick and choose what neighborhoods they want to service, much like you pick and choose what shows you want to watch.
Henry: Johnston says that creates a digital divide.
Johnston: Few folks have access to this information and then there is this great divide and then you have these other folks that don’t.
Henry: Well I would argue they have access; they just don’t have access as fast.
Johnston: Dial-up internet is slowly becoming a dinosaur; you can’t do very much on dial-up.
Henry: According to telephone companies, new providers may begin service where they have the potential for the most customers. In urban areas, rural customers may not get high speed right away. But Metcalf says the groundwork is literally already in place. Quote, “The telephone network which would provide the backbone for video services already goes everywhere. Statistics indicate that consumers tend to buy video services at the same rate regardless of income level. As a practical matter why would any new competitor entering the market with 0% share turn away from customers who want their service?” end quote. And according to that Texas study, cable competition expands the total size of the cable TV and video market, that means more people with access to information and falling prices mean more people can afford the technology. Also local governments that receive part of the state’s franchise tax benefit from the broader customer base.
Johnston: Right now if you have a complaint with your cable bill or you are being overcharged, what you do is you call your local municipality and they have someone on staff who deals with cable complaints and has authority to call the cable company and say, “Hey, why are you doing this?” Under the state model you call the attorney general if you are getting charged too much.
Henry: And that may be a snag. The attorney general has come out against the legislation. Currently there are 179 different cable franchise agreements. Eventually all of those would fall under a state’s franchise agreement and be monitored by the attorney general. So while the scene is still changing, we do know viewers need to stay tuned.
McCullen: This bill is on the governor’s desk. It would go into effect January 1st of next year.
Vajda: In the meantime federal legislation may undo all state franchise agreements and one final note, satellite television subscribers will also pay taxes to the state starting next year.
OTHER LEGISLATION
Vajda: Also this week kids who fail eye exams when entering schools will be urged to get more testing by an optometrist or an ophthalmologist. Lawmakers changed the existing law from a requirement to a suggestion. The original provision was added in last year’s budget by Speaker Jim Black who is an optometrist [House 2699]. It was later repealed by Senate but this week they agreed on a compromise measure. Supporters say the measure would help catch kids with vision problems. Opponents meanwhile say the bill still gives speaker supporters what they want.
McCullen: The General Assembly approved allowing private developers to build public school buildings and lease those buildings to local governments. Supporters say the private sector can build campuses more efficiently and maybe more cheaply than the government [Senate 2009]. The leases can be long-term measured in decades and could help cities avoid school bond referendums. School boards could pay long-term leases without obtaining voter approval under current law. This bill does have an expiration date of 2011.
A Senate Judiciary Committee considers mandatory criminal background checks for all University of North Carolina student applicants [Senate 2002]. Bill sponsor Senator Neal Hunt says the universities should know applicants’ backgrounds before they arrive and parents would likely support it. Hunt’s bill authorizes criminal background checks of students applying at any UNC system campus. It would make parents pay the background check fees, around $20, and allow third parties to have those checks and email admissions officers when a criminal check warrants it.
Hunt: The university needs to know if a student has been admitted has a criminal record. If they choose to admit them after that, that is their business—that is, nothing in the bill would preclude that. But we just want the university to be aware of what is going on.
Berger: Why wouldn’t we have a mandatory requirement for all students entering high school in the State of North Carolina and impose a $20 tax on each of their families to provide a criminal record check to their local high school?
McCullen: The bill allows applicant finger printing but that is left up to the individual university’s discretion.
Vajda: State lawmakers are jumping behind some of North Carolina’s congressional delegation in support of establishing an immigration court in Charlotte. Representative Sue Myrick has started a petition drive asking the U.S. Department of Justice to place a court in that city. Statistics show there are approximately 300,000 illegal immigrants in North Carolina. The nearest federal immigration court is in Atlanta and that causes an undue burden to the state, they say. The resolution also urges officials to make it a conviction in any state court that an offensive of DWI is a deportable offense for anyone in the country illegally.
McCullen: This coming Monday evening House lawmakers are expected to take up legislation aimed at verifying the legal status of newly-hired state employees. State agencies would begin taking steps to participate in the U.S. Department of Homeland Security’s basic pilot program. That program verifies workers’ legal status [House 1942]. The new law would affect new state employees who are hired after August 1st. It does not affect contract and sub-contract workers.
Some say the ethics and lobbying reform passed by the Senate does not go far enough. Others say it is a good first step. Eszter talks with Senator Dan Clodfelter and Senator Phil Berger to get their view on this issue.
ETHICS AND LOBBYING REFORM
Vajda: Senator Clodfelter, Senator Berger, thanks so much for being here.
Berger: Thank you.
Clodfelter: Thanks for having us.
Vajda: Senator Clodfelter I know you’ve put a lot of work into this bill, 58 pages long, it has a lot of things—what are some of the highlights?
Clodfelter: In 58 pages there are a lot of highlights but I think the main thing that distinguishes the bill that we just passed from some of the things that came out of the House study committee were the centralization of the ethics oversight and function into a state ethics commission, the single commission that would be responsible for oversight of ethics issues in all three branches of government. To a greater or lesser extent I think, lesser in the case of judiciary, more so in the case of the legislative branch and would have full oversight in the executive branch. And that is a rather significant change in the current environment.
Vajda: You voted for the bill, Senator Berger, you are pretty much in favor of it. What is your overall view of it?
Berger: I think it is a good bill. I think it does a lot of things that we’ve needed to do and I think recent history has shown us that a lot of the things that are in the bill were necessary. My only problem with the bill is I just don’t think it went far enough in some areas and we’ve got a commitment to work on one of those areas and the other is one that I have particular concern about. The area we’ve got a commitment to work on is this question of legal defense funds and the total unregulated atmosphere we’ve got for contributions to those. The thing that I thought should have been in the bill and wish would have been in the bill had to do with limiting lobbyists’ ability to raise money and bundle contributions and that is not in there and I think that is unfortunate.
Vajda: Senator Clodfelter the House limited and banned contributions; why didn’t the Senate?
Clodfelter: Actually the Senate bill does ban contributions from lobbyists.
Vajda: I’m sorry; the House says it is unconstitutional.
Clodfelter: No actually no the House bill put a limit on the amount that lobbyists could contribute. The Senate bill simply bans contributions from lobbyists altogether. Now I agree with Senator Berger, I think—and as a result of the agreement we did put an amendment on the bill to ban the bundling of contributions. I think he and I are both agreed we are still going to continue to tinker with that language to get it as tight as we can about the practice whereby lobbyists go around and assembly small contributions, collect them together and then deliver them in a bundle so that the lobbyist gets credit for the fundraising as it were. I think, and this is where we differ a little bit, is I think we pushed the bill about as far toward the Constitutional limits as we can and we differ again on where those limits may be. But the problem we’ve got here is that lobbying is not just an activity that some people in suits engage in, it is an activity that virtually everyone who contacts the legislature is engaged in whether they think about it or not and that is a Constitutionally-protected activity. So we have to be careful where we draw some of the lines.
Vajda: I know the House also has an issue with the Ethics Commission being one body instead of three separate ones. What is your response to that Constitutional question?
Clodfelter: Well again I think we’ve got to do something to put an independent commission in place in order to assure the public that there is an independent oversight, that this is not just us watching ourselves. Again there are limits on the Constitution on how far we can delegate that function. The judiciary delegating it to another branch of government or of the legislature delegating it to another branch of government, it is that old thing of separation of powers that you learn about in grade school. And that puts limits on how far an independent commission can be allowed to work. But I think we’ve pushed that as far as we can do so again we may differ on the details but I think we agree on the principle of that.
Vajda: Senator Berger you were a member of that Judiciary Committee that Senator Clodfelter chaired. Why didn’t you bring up that amendment in that committee?
Berger: Well it is one of the issues that was discussed informally amongst the members of the committee by some of the activists that have really pushed this issue significantly. And decisions were made that it would not be included. I continued to think about it, ponder it, and just felt it was something that needed to be addressed and something that needed to be brought forward because it just seems to me that if you can Constitutionally, which the bill says you can do, ban lobbyists from making contributions I don’t see where you would or should have a problem banning them from raising money. I don’t think there is a problem restricting what you can do indirectly when you can restrict what you can do directly.
Vajda: Senator Clodfelter?
Clodfelter: Well again I mean we have to operate within the bounds of the law the courts give us in terms of how they interpret that and my concern is that we went a little bit too far in saying you can’t advise or solicit members of the general public about what you think. You’ve got to remember there are eight million people in North Carolina, most of them aren’t here every day watching what we do in the building and people who are paid lobbyists and people who are lobbyists without pay, and there are many, many of those, often are a source of information for their friends and neighbors about what is going on in the legislature and who might be worth supporting. To start to restrict their right to communicate their views about who they think is worthy of support, what they have observed, who they might think may be a supportive candidate for a particular community group or organization, that does begin to get I think into an area where the Constitution says we can’t go.
To restrict the activities of the lobbyists themselves, what they can do, I think we have a little bit more flexibility on that and that is why I agreed with Senator Berger that we ought to ban the bundling of contributions and their attempts to leverage that into personal influence. Again our contribution laws already forbid the lobbyists from doing things like hosting fundraisers at their homes, that is deemed to be a contribution, an in-kind contribution and by banning the contributions we’ve banned that kind of activity. We again differed on the detail; I don’t think we differed on the principle.
Berger: And again it seems to me that saying that you ban them from having the fundraiser at their home yet they can have the fundraiser at the country club or at some other place and do all the organizing for it. I just think that is a distinction but what we need to do to get at the real problem which is the way money gets into the system is to put a complete ban not only on lobbyists contributing money but on lobbyists organizing fundraisers, on lobbyists bundling contributions, and the language that Senator Clodfelter offered on the bundling really doesn’t go very far to effectively stop bundling because it allows the lobbyist to accumulate all the contributions. It just prohibits him or her from delivering the contribution; he or she can have it sent by their secretary or have the candidate pick the things up at their office.
Clodfelter: Of course quibble about the details, we will get the language right. The commitment is to prohibit bundling. Frankly if you can’t deliver the contributions then you can’t get any influential benefit out of raising the contribution if you can’t deliver them. But that is again a difference of detail; I think we ought not magnify that kind of difference. I will say this and I agree with Senator Berger, the problem with—the fundamental problem and I said this on the floor last night is the influence of money in politics. It is not just lobbyists’ money, the biggest money flowing in is not from lobbyists or the money even that they raise, it is from political action committees, it is from these independent 527 organizations that participate now that have sprung up in the last four or five years, and from very, very large donors who are not lobbyists. And that influence has nothing to do with lobbyists or lobbying, that is a red herring quite frankly. The problem is big money in politics and the real solution to that is to set up a system, a different way of financing campaigns so that we don’t worry about whether it is lobbyists or whether it is big donors or whether it is political action committees or whether it is 527 organizations, we’ve taken care of the problem of big money in politics. That is where we really need to head.
Vajda: Go ahead.
Berger: And I would say that the problem is partly the amount of money but mostly it is how the money gets there. And when you have people whose primary vocation is to influence legislation or to attempt to influence legislative decisions, and you allow those people to raise great amounts of money and contribute or at least funnel that money to decision-makers, what you do is create the perception of an unleveled playing field were the average person doesn’t feel that they have an opportunity to have any access whatsoever. So it is not the money itself it is how the money gets there and how it is delivered to the candidates.
Clodfelter: I want to take issue with something here because again there is this paradigm here that is just not correct on the facts. The average person, many average people, are lobbyists. They meet the definition of a lobbyist. You don’t just as I said last night have to be an old white guy in a suit smoking a cigar walking around the halls with wads of cash to be a lobbyist. Many, many thousands of people in North Carolina meet the definition of a lobbyist, average people. So when you begin to talk about putting restrictions on those people you are not just restricting as I say the caricature guys, you are restricting an awful lot of folks and you have to think about what you are doing there. Again I think the right issue to focus on is big money in politics. There have been reforms proposed over the year, many of which Senator Berger and I have both supported, to deal with that issue. I hope we can work together on those in the future.
Vajda: Well let me go back to something Senator Berger said earlier about the bill not going far enough and in fact the North Carolina Coalition for Lobbying Reform also said that some of the Senate’s version is watered down and it is not what the original House Ethics and Governmental Reform has proposed. What is your response to that?
Clodfelter: I think that is poppycock. Actually it is interesting to me because I hear from some of the same groups that we think the bill went too far. And what that translation is saying is that it actually begins to regulate some of their activities as well.
Vajda: Like who?
Clodfelter: Well I think some of the reform groups that are not happy with the regulation of solicitation to lobby for example. That is a concept actually that started out in the House bill but what happened when the bill go to the Senate was we started looking at that and saying, “That has no teeth; we need to put some teeth into that concept.” It was just a piece of paper in the House version. And we put some teeth into it and we began to hear complaints that, “Oh but we don’t want to regulate that kind of lobbying.” And I think again it all depends upon where you are sitting.
Vajda: Senator?
Berger: Well I’ll stand with what I’ve said up to this point which is I don’t think the bill goes far enough to regulate the type of activity that was well reported in the news media about what was ongoing over the past year. And I think what we’ve done is we’ve made an effort to do something about ethics and something about lobbying and we’ve done a lot of good things in the bill but we’ve not gone far enough and I think I’d like to see us go a little bit further. There is one other thing I’d just like to comment on and that is the fact that we really didn’t have an opportunity to fully debate everything about the bill because the debate was cut off on a motion by the majority party. And I think that is unfortunate when we are talking about a bill dealing with ethics, dealing with lobbying and the whole question of influencing government and discussing legislation and we had debate cut off on that. And I know that being in a minority party I learned a long time ago how to count and 29 is more than 21 and I understand that is the way things work sometimes. But I think it would have been much better, particularly on this bill, if we had had an opportunity for a full airing on the floor because there were a lot of people who were not on the Judiciary Committee, did not have an opportunity to participate in that debate that had things that they may have wanted to say.
Clodfelter: Again at least my recollection of what happened last night was quite a bit different from that. I remember being on my feet for a rather substantial period of time taking questions, listening to other points being made and indeed as I recall it when the presiding officer called for other speakers or amendments Senator Berger offered his and that was it, there was no need for anything further because we’d come to the end at that point I think after about two hours according to my clock. I don’t think that the characterization that the debate was cut off is really a fair one. No question that was asked, no one who rose to ask a question went unanswered. The answers may not have been satisfactory to everybody but I think it is just a mischaracterization of what happened last night to say the debate didn’t occur.
Berger: I think you just go look at the record and there was a motion to cut off the debate and that motion passed on a party line vote. There were at least two amendments that were still pending that members had to offer that did not get a chance to be heard.
Clodfelter: There were no pending amendments when the debate ended.
Vajda: Well let me ask you to respond to something else that Senator Berger said earlier and that has to do with the whole sunshine of it and deterring what some of the past media or the past reports in the media have—will this bill deter what we have seen in the past in the media?
Clodfelter: I am not—
Vajda: Without going, without going too specifically into, with some of the recent allegations against contribution violations.
Clodfelter: Well now you are talking about contributions and—
Vajda: And lobbyists.
Clodfelter: We expended the reporting requirements rather substantially in the bill. They are very substantially expanded. Now if people are going to withhold information they are going to withhold information but we’ve increase the penalties for that and the punishment for withholding information, for filing false reports, for filing false disclosures. The consequences of that are going to be rather severe. I think there was a news article this morning that I saw about a $71,000 fine on a, on Mr. Broyhill I think for failing to report some fundraising activities. Those kinds of things have been increased not only in this bill but in several other bills that have been passed in the session. And that is another opportunity I want to take, this isn’t the only bill that has been running. So many of the things that we’ve read about in the press over the last 12 months were being addressed in other pieces of legislation that have already passed into law, the use of blank checks for example, the solicitation of blank checks and then decision later about who they are going to be given to—that is already banned by bills that have passed this session. The use of campaign funds as personal slush funds for personal expenses, that has already been banned by a bill that passed this session. The bill that we debated last night is not the only bill that has addressed this subject this session.
Vajda: Final word, Senator Berger?
Berger: Well I think again the Senate has taken a good effort with lobbying and ethics reform. I wish we had gone further. I think it will be viewed as a missed opportunity.
Vajda: Thank you both for a great debate.
McCullen: Besides this bill several others have been passed dealing with ethics and governmental reform.
Vajda: For more analysis on this week’s happenings Kelly sits talks with members of the Capital Press Corps.
ANALYSIS SEGMENT
McCullen: Joining us this week Paul O’Connor with the Winston-Salem Journal, Barry Smith writing for the Freedom Newspapers, Mark Schreiner with the Star News down east. Gentlemen thanks for being on Legislative Week in Review this week. Well Paul sits in the senior correspondent’s chair he gets the first question. Gentlemen excuse me. Assess the speed in what’s been going on this week with the legislature.
O’Connor: I think that they have been speeding up a bit. I am surprised that they didn’t move more quickly. I thought they really wanted to get out of here. I suspected that they were going to use running out of time as the excuse for not passing an ethics bill at all. But I think that people saw what was coming, that they were dawdling to be able to do that and they called their hand on it early enough that they had to deny they were going to do it. So I would say that things certainly did speed up this week but they didn’t speed up the way we would have thought so that they could get out of here.
McCullen: Well for the stories you are covering Barry are they moving through? Is it hard to keep up?
Smith: They are moving through a lot of them and I tend to agree with Paul, they were going pretty fast this week, they were looking like they really wanted to get out of here and all of a sudden they realized that they just weren’t going to be out of here and some of this ethics reform, lobby campaign reform, that sort of thing, there is just too much political—too much of a political reason why they have to do something this session or I think it will come back to haunt them. And there is some stuff that you could have passed really fast but I think there were probably a lot of things in there that they would have regretted later on.
Schreiner: As a matter of fact we are getting a little bit of a slow down. The Senate met on Friday, which is unusual, and then they say they are not coming back until the conference reports are done on a number of pending bills. They might not be back until Wednesday or Thursday, meanwhile the House is supposed to be meeting and working so and even Senator Basnight held out the possibility that it could be another week before the session is done.
McCullen: How hard is it to pin them down, Paul, historically? You just can’t do it can you?
O’Connor: Well usually you can see it coming and they hit—you get a sense that we got two weeks ago that they are really ready to go home and then you can pin it down to a couple of days. And this one, that formula or that sense that we get that just hasn’t been there.
Smith: Generally with, generally once you get the budget done you have a couple of weeks—ten days, two weeks—maybe three at the most unless there is something really big hanging. We saw that I think in 1981 when they had redistricting going on; it took until December for them to get out. And this year ethics reform is the real biggie. It is a lot for them to choose in what is supposed to be a short budget adjustment session.
O’Connor: And they have always used having the “get out of town, we’ve been here too long, heck we are going to be back,” they will say, “we are going to be back in February, late January, we can handle this,” as a way of dodging having to do things that they don’t want to do but they really just can’t get away this time without doing something about ethics and lobbying.
McCullen: Why must they do something according to what Paul says about ethics and reform?
Schreiner: Well it is, these issues have hung over the legislative building like a dark cloud since the end of last year. And we are talking about allegations against Speaker Black’s campaign and against him personally, investigations by the Board of Elections, perhaps by the local district attorney, perhaps by the federal prosecutor—locally there were a few folks that visited the grand jury this week that have connections to the speaker. So these bills are an attempt to dispel these clouds and the cloud hasn’t broken up and the bills haven’t passed.
O’Connor: And the other thing to keep in mind is that this cloud has been here not just since the end of last session but there was enough concern about legislative ethics and lobbying reform for the secretary of state in early 2004 to start her panel. And they came down here in the 2004 short session and they pulled the old ruse, “Well, you know, they filed their bills like a week before they wanted to leave and we’ve run out of time; we’ll handle it next year.” Well 2005 came along and they dawdled all session and they passed this meaningless anemic bill that doesn’t do anything other than drive the poor lobbyists crazy but with reporting requirements and they got out of town and they figured you know, “Okay, the public will accept anything. We didn’t do much.” Well immediately people started calling them on it. “You didn’t do anything,” the editorial writers and the opposition party. And then the scandal broke. And so the cloud has been there so long if they leave now I just can’t see how they can do it.
Smith: And there is an election coming up in November.
McCullen: You know it has made headlines to see former Rules Chairman Bill Culpepper and Meredith Norris walk in and out of that courthouse here in Raleigh. What does that do, the appearance of that and what everyone read in the newspapers and saw on television news? What does it do to the legislative process down here Paul when they see that? Anything at all?
O’Connor: I think the big thing it does is it has been the—we call it a wrench or a hammer that has been beating them over the head and forcing them to consider lobbying and ethics reform.
Smith: It keeps the public attention focused on what is going on and that I think is causing them to take some time with this thing rather than—they could possibly have tried to forge together a quick compromise bill and have voted on that but I think that is making them take a little more time, study what they are actually doing. Whether we will get a good bill or not remains to be seen. But at least I think it has had that effect.
McCullen: But does it follow the issues, Mark? How closely are they following the lobbying and other ethics bills? I mean they are big bills.
Schreiner: Yeah, one thing I wanted to say about the—you know we talk about “they,” you know “they” is in a few different groups and what peaks out in some of the debates is an opinion by some lawmakers they feel they have been dragged into this issue. You know that they personally haven’t had any ethical issues or problems and that they are being forced to do this for appearance sake and I think they are also having to contend with that. That is sort of an anchor dragging on the program as well.
O’Connor: The persecution syndrome down here is just brutal. These people think they are such martyrs that they are going to have to start paying their own way. I don’t know if you were in Senate J-1 this week but they were talking about these meetings that they have when they go home and they meet with maybe five or six people. I think you were there. And it took 20 minutes of discussion before it dawned on someone that the solution to the problem that they were finding in this particular part of the bill was simply for the legislator to buy his own lunch. You know they are so used to getting a free lunch that it didn’t dawn on them, it didn’t dawn on them that this part of the law will not be a problem if you just buy your own lunch.
McCullen: Well the whole process with these bills, you know it is back in the House for a—well they are working on negotiating it out but how is the process done getting this bill passed by both chambers and returned back and then to a conference committee, Barry, it has been batted around so much?
Smith: Well the, a couple of things. Sometimes they have taken great pains to let everybody have their say, let everybody offer suggestions, offer changes. And then sometimes they haven’t. And we’ve seen in recent weeks the House has had a bill on lobbying and they took a second reading and I think one of the legislators wanted to offer an amendment related to lobbyists being able to raise money and third reading never came up, the final vote never came up, he never had an opportunity to do that. A similar memo was offered in the Senate and the Senate used their rules to prevent a vote on that and then cut off debate right afterwards and didn’t allow that to happen. So yeah, I—sometimes things change and they are more open and sometimes they are not.
McCullen: How open are they being about this?
Schreiner: You know I think Barry is right that there are parts that are open, things sort of peak out when they have these discussions but what we are waiting for is a final version, what is, everybody I think is asking the question, “What are we really talking about?” And “What will be the rule?”
O’Connor: The thing I would raise about the process and the openness of it is what on earth were the Senate Democrats doing for how many weeks—four in May, four in June, and a couple of weeks in early July before they even rolled out their bill? And so then they rolled the bill out at the end of, well in the middle of July near the time that they want to go home and a couple of senators stand up and say, “Oh it is too late to do this; let’s go home.” Well if the Senate had come out in early September, in early May, with a bill, maybe a bill they didn’t put together when the Study Committee or the House did, they would have had an open process.
McCullen: Some of the details of this involve some Constitutional questions surrounding some provisions of lobbying and the ethics reform bill, namely lobbyists giving contributions to candidates. How strong is the argument that might be unconstitutional?
Smith: They try to take the position that the federal government bans federal employees from contributing to political campaigns. They say that is the exception that we are going to follow. And that has been uphill apparently by the courts. The distinction I see in that and again I am three years short of a law degree but the distinction I see in that is that the federal government is telling its employees that it can’t give to a political campaign kind of the same way my newspaper tells me that I’m not supposed to participate in political activities. I don’t know that the state government can tell somebody else’s employees to do that. It is going to be interesting to see how the court rules on that.
McCullen: What about PSAs and forbidding elected leaders from appearing in public service announcements, Paul?
O’Connor: There is this statute now that forbids them from appearing in PSAs in the year of a campaign. I think that is a terrific law. The thing was being abused. I’ve lived in other states where it wasn’t abused, where occasionally the attorney general or the governor came on and a matter of fairly, you know pretty significance, and was on an ad. But again Mike Easley basically ran his campaign for governor in the late ‘90s doing this. Roy Cooper, Treasurer Moore, and then the silliest one Secretary of State Lane Marshall—she had a really ridiculous one a couple of years ago and they were all running.
McCullen: For all the compromise being in negotiations going on right now with ethics, how strong could this bill be compared to what the writers originally intended?
Schreiner: I don’t know. I mean I think Barry had brought it up, or Paul had brought it up before that you know when they put the lobbying bill together last year not only did a lot of people think it was watered down, they put the effective date of that lobbying bill past the coming election—it wasn’t going to start until next year. I don’t know. It is—that is an inevitable debate I think at the end, you know, to just really solve the issue that we are talking about. And what we are talking about is money in politics. And you heard some of that debate this week, this lament that it is an insolvable problem, that money is going to be in politics and you can set up rules and reporting requirements but they are inseparable. And I think there is going to be a debate over whether that is true or not.
Smith: I think one of the things, I think there are, and people have pointed out that there are loopholes in this. One is, my understanding, you folks correct me if I understand this wrong but it doesn’t say anything about lobbyists giving money to political parties, which is where a lot of campaign money goes to. So that is one way already around the rule. Let’s say this law is Constitutional and upheld, you can still find a way to do it if you want to do it.
McCullen: Paul do you see any way that this bill may not get passed or is there too much writing on it now with them hanging around?
O’Connor: Something will pass whether it is something meaningful remains to be seen. I think that there are some things in there that will survive that will make for the better. I think things will be better next year. But I think the situation here is that we have a rare opportunity to seize the moment, the political environment right now, the atmosphere is ripe for the kind of reform that North Carolina has needed for a long time. Let’s hope that we don’t lose, don’t miss that opportunity.
McCullen: How long could Paul’s ripe environment last? Could we stretch it into ’07?
Smith: I think a lot would depend on how the elections turn out this fall. I think if the same folks are reelected I would be surprised to see it. I think that they would say, “We survived it, let’s move on to something else.”
Schreiner: We did that last year.
McCullen: Do you think they will come back later, with the last 30 seconds of this interview; will they come back and try to tie up loopholes? They say they might do that. If this bill passes does it come back and do they try to tweak it next session?
Schreiner: Depends who wins the election. And I think we talk about ripe political environment, the election is the—they don’t want this to carry into that election season. They’d like to have this issue settled at least in the minds of the voters before November.
McCullen: Gentlemen as always thank you so much for being on Legislative Week in Review.
Vajda: Now to last week’s Question of the Week, “Should talking on the cell phone while driving be banned for everyone or just those under 18?” Seventy-two percent of you said “yes, talking on cell phones while driving should be banned for everyone,” fourteen percent of you said “no,” fourteen percent of you were not sure. One viewer wrote to us that everyone should be banned from using cell phones while driving, quote, “When I see someone driving erratically I place a bet that they are using a cell phone and pull up on the next lane to check. So far I’ve always won.” Opponents of the measure say that it comes down to personal choice. That is going to do it for our show. Thanks so much for watching everyone. I am Eszter Vajda.
McCullen: And I am Kelly McCullen. Have a great weekend.
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