In the elections last November 6, citizens in New Mexico and North Dakota voted to amend their state constitutions to establish state anticorruption commissions. In doing so, they joined the vast majority of American states (currently 44 out of 50) that have created similar (or at least similarly-named) commissions—starting with Hawaii back in 1968. The impulse to create a special commission to deal with a significant problem like public corruption is certainly understandable. Indeed, many state commissions were created immediately after a major public corruption scandal, when public frustration was running high. At the same time, though, the record of such state-level anticorruption commissions in the US is mixed at best (see, for example, here, here, and here). And despite the similarities in their names, many of these commissions actually do quite different things—with some functioning like ethics commissions that publish quasi-legislative standards and others functioning more like mini-prosecutors’ offices. Indeed, it’s not entirely clear that voters in New Mexico or North Dakota knew exactly what they were voting for when they went to the ballot boxes. In New Mexico, the referendum measure left to it to the state legislature to determine how the commission would operate, while the language in the North Dakota referendum suggested that the commission’s duties would be largely optional.
Despite their diversity and admittedly mixed track record, state anticorruption commissions have many potential benefits. They can provide clear reporting channels for individuals who have witnessed corruption; they can evaluate systemic corruption risks by sector and recommend more targeted reforms to state legislators; and they can enhance accountability by investigating ethics complaints and corruption allegations, and referring appropriate cases to state prosecutors’ offices. But in order to be effective, state commissions need to have certain institutional features and safeguards.
- First, it’s important that anticorruption commissions be independent of the party in power and able to undertake important investigations without fear of reprisal. In practice, this means that the commissioners of state anticorruption commissions should be removable only “for cause” (that is, for malfeasance in office) rather than “at will.” Furthermore, an independent commission should, like the majority of federal independent commissions, be governed by a bipartisan coalition to ensure critical investigations don’t have the appearance of partisanship. States have used different formulas to create bipartisan coalitions on their anticorruption commissions. In California, for example, the members of the five-person Fair Political Practices Commission (FPPC) are selected as follows: the Governor appoints two members, including the chair, but these two commissioners cannot be from the same party; the state Attorney General, the State Secretary, and the State Controller each appoint one of the other three commissioners, but if all three of those officials share the same party affiliation, then the Controller is required to choose a commissioner from a list provided by the opposition party. (Each commissioner serves staggered four-year terms and can only be removed for “substantial neglect of duty, gross misconduct in office, inability to discharge the powers and duties of office or violation of this section, after written notice and opportunity for a reply.”) West Virginia’s Ethics Commission also requires that commissioners be appointed from different parties as well as different parts of the state. However, its “for cause” protections are broadly defined, and thus easier to overcome.
- Second, because anticorruption commissions are powerless if they can’t actually investigate the complaints they receive, states should empower their commissions with meaningful investigative authority over the executive and legislative branch, including independent subpoena power. For example, Washington State has two anticorruption commissions (one for the executive and one for the legislative branch), both of which possess subpoena power and, as a consequence, have resulted in considerable number of investigations. Virginia, by contrast, has one anticorruption commission (created in 2015 following the federal indictment of former Governor Bob McDonnell) which lacks any investigative power whatsoever. (Even formal investigate powers are no guarantee of effectiveness, however, if the commission is not sufficiently protected from interference: New York’s Moreland Commission, for example, was established in 2013 to investigate public corruption; and had formal subpoena power—but when it sought to use that power to investigate organizations close to Governor Cuomo, it was disbanded.)
- Third, commissions should be empowered to investigate corruption occurring at the municipal, not just state level. In Indiana, for example, although there are a wide array of state anticorruption institutions – including a state inspector general and ethics commission –none of these institutions can investigate corruption at the municipal level where reports of corruption are actually highest. While the ideal solution might be to create strong anticorruption bodies exist on the municipal level as well (as has been done, for example, in places like Pennsylvania), having a second check at the state level can ensure those organizations do the work they promise their citizens. In 2012, Utah did exactly that when created the Political Subdivisions Ethics Commission to investigate allegations of corruption by local officials in any political subdivision in the state.
- Fourth, effective commissions need to be protected from “hollowing out” through budget cuts—a phenomenon that is both unsurprising and all too common, given state legislators’ incentive to keep an anticorruption agencies from getting too powerful. In July 2018, for example, Oklahoma refused to provide any funding for its state anticorruption commission; the legislature instead suggested that the commission use the $700 (not a typo) it had in its revolving fund. Similarly, the Delaware Public Integrity Commission has a budget of $185,000 and just one lawyer. By contrast, South Carolina State Ethics Commission has a budget of $1.3 million, while California’s State Ethics Commission has a budget of $11 million. To ensure that state anticorruption commissions remain effective, they should be guaranteed a minimum budget by law, or alternatively the budget for the anticorruption commission should be tied to state spending on other law enforcement priorities so that the anticorruption commission can’t be singled out for cuts.
While it is unclear how legislators in New Mexico and North Dakota will develop the commissions its citizens have endorsed, both states benefit from the immense experimentation that has already occurred in this space. Voters should push their legislators to adopt the aforementioned safeguards to ensure their commissions succeed.