It's Time to Drain the Swamp in Sacramento

04/17/2014 02:23 pm ET Updated Jun 16, 2014

If the scandals involving California state senators Leland Yee, Ron Calderon, and Roderick Wright have proven anything it is that the existing system for the Senate to police the ethics of its own members has been an utter failure. The time has come to establish an independent legislative ethics commission, as even lobbyist George Steffes is saying.

When Nancy Pelosi won a majority in the House of Representatives in the 2006 election, it was on a promise to drain the swamp. Exit polls from that election indicated that voters listed corruption and ethics as their number one issue, higher even than the war in Iraq -- scandals involving lobbyist Jack Abramoff, House Majority Leader Tom DeLay disgusted America, and made Pelosi the first female Speaker of the House.

Pelosi made good on her promise by leading efforts to create the Office of Congressional Ethics (OCE), an independent agency housed within the Congress that could investigate ethics charges against members of Congress. While the OCE is not as powerful as some reformers would have liked, it has made a real difference. In 2010, the OCE examined charges against Congressman Charles Rangel and found him guilty of violating House ethics rules. The House then voted to censure Rangel, the first such reprimand in 27 years, which led to a vigorous challenge in the 2012 Democratic primary. In years past, the House Ethics Committee surely would have brushed the allegations under the carpet. All in all, the OCE launched 116 investigations in its first five years.

Compare that to the track record of the California Senate Legislative Ethics Committee, which is letting the FBI do its work. The Ethics Committee should have launched a probe of Senator Calderon last June, when the FBI raided his offices. Instead, it did nothing. Even when an FBI affidavit was leaked to the press detailing Calderon's sordid bribe-taking, the Senate Ethics Committee sat on its hands last fall. Once Calderon was arrested and charged by the FBI, the Senate Ethics Committee said it didn't want to interfere with the investigation.

The Fair Political Practices Commission serves as an independent watchdog of campaign finance rules in California, but its jurisdiction does not extend to all ethical issues. For instance, when I filed a complaint at the FPPC on behalf of Common Cause in 2009 and asked it to investigate two lobbyists who Assemblymember Mike Duvall had bragged about having affairs with, the agency demurred and said the issue was beyond its jurisdiction. Duvall resigned, but had he refused to it's unclear that anyone would have forced him to. It also arguably violates the concept of separation of powers to have an executive branch agency like the FPPC in charge of the ethics of the legislature -- only the legislature can censure or expel its own members so responsibility ultimately must reside there.

But instead of investigating its own members, Senator leader Darrell Steinberg politely asked Senators Calderon and Yee to resign and when that didn't work he had the Senate suspend them with pay pending the outcome of the judicial system. While it is galling that these unethical people are still on the public payroll, the bigger problems are that their constituents are not being represented in Sacramento.

Everyone has a right to be presumed innocent of a crime until found guilty in a court of law. For most public servants, such as teachers or police, suspension is an appropriate response while we take time to examine the evidence in a trial. But teachers and police can be replaced by a substitute; a legislator cannot until they are removed from office.

Even in the height of his disgust with Senator Yee, Steinberg said, "Obviously he can't come back. Well, if he's acquitted he can."

Really?

By establishing the precedent that a senator will only be expelled if they are sentenced to prison, Senator Steinberg is making a grave mistake. A person accused of a crime may go free due to a mistrial, prosecutorial misconduct or entrapment, or even a strong sense by the jury of guilt but not being convinced beyond a reasonable doubt. Yet, surely it would be reasonable for the California Senate to expel a member based upon a lower standard, concluding that a person was no longer qualified to serve if a preponderance of evidence suggests they did something highly unethical even if not illegal.

Serving in the legislature is a privilege, not a right. It tramples on the rights of the voters in three Senate districts to deny them representation in order to preserve the privilege of an accused aenator to return to office should they be acquitted in court.

The voters of California removed Gray Davis from the governor's office even without finding he had violated any law. He had simply lost the people's trust. There is ample reason to believe that Senators Calderon and Yee have lost the trust of their constituents and should be expelled immediately and the same may be true of Senator Wright.

The fact that neither Senator Steinberg nor Minority Leader Bob Huff can see that is why we need an independent ethics commission in Sacramento.