Tennessee adopted what were thought to be sweeping ethics reforms after four sitting state lawmakers were arrested on bribery charges. Ten years after the scandal rocked the legislature, however, there are questions about whether lawmakers have neutered the reforms and created loopholes as wide as the Tennessee River.
Political observers, moreover, say there are many ways to get around the state’s campaign finance regulations.
These are some of the reasons why this state of 6.5 million people earned a score of 66 and a grade of D from the 2015 State Integrity Investigation, an analysis of state transparency and accountability conducted by the Center for Public Integrity and Global Integrity, ranking the state 15th. The grade represent a drop from the C Tennessee received in the project’s first go-round in 2012, but the two scores are not directly comparable; the new survey did not look into redistricting, which occurs only once every 10 years, for example, and additional questions were added on open data standards and election oversight.
The state Ethics Commission was created in a special legislative session in 2006, a year after four sitting lawmakers were charged with taking bribes in an FBI undercover operation known as the Tennessee Waltz.
New rules were imposed on lobbyists, and they were banned from donating to political candidates. But the law still allows a lobbyist to be the treasurer of a political action committee, or PAC, and decide how money is distributed. And a lobby firm can set up its own PAC to give money to candidates.
“In other words, they set up superficial rules that are easily bypassed,” said Tom Humphrey, a veteran political reporter who writes for the Knoxville News Sentinel.
Two opinions in six years
The six-member Ethics Commission has issued only two advisory opinions in six years. And the commission was paralyzed in the face of a request in the spring of 2015, when the National Rifle Association asked for a formal opinion.
The NRA was getting ready to host its annual convention at the Music City Center in downtown Nashville and country singer Alan Jackson and comedian Jeff Foxworthy were performing in town. A lawyer for the gun-rights organization asked whether the NRA could give free concert tickets to a select group of state lawmakers.
But in the face of a request from an organization that holds much sway among lawmakers in the state legislature, which has a Republican supermajority and is decidedly pro-gun, the commission’s members deadlocked. No formal opinion was issued.
Ethics commissions are sometimes loath to make waves with lawmakers, said Dave Boucher, who writes about politics for The Tennessean and formerly covered the West Virginia statehouse.
“They don’t want to make them too upset, because if they do they can lose a significant amount of their funding, and that funding can go toward investigations, staffing or anything else that they do,” Boucher said. “So this idea that it is an independent governmental watchdog is a little bit misleading, in that it is funded by the lawmakers [whom] it is charged to oversee.”
Limits – and loopholes
When it comes to political financing in the Volunteer State, there are limits on donations to political candidates and limits on how much money candidates can get from PACs. But there are plenty of ways around these restrictions.
“If you’ve got the money, you’re going to be able to find a way to spend it in a campaign,” said Humphrey, of the News Sentinel.
Part of this is a function of federal law and recent U.S. Supreme Court decisions that allowed corporations and unions to spend unlimited amounts of money to convince voters to support or defeat a candidate. Tennessee is seeing an increasing number of super PACS as a result, Humphrey said.
There is no limit in Tennessee on how much one can give to a political party or a PAC. And what’s spent on “educational” advertising, which often comes in the form of attack ads, doesn’t count as a campaign contribution as long as the ad doesn’t explicitly say “vote for” or “vote against” a candidate.
“What they will do,” Humphrey said, “is they will put out an ad that says, ‘This representative is a lying, worthless, no-account politician. She loves Obama. She’s for a state income tax. We thought you ought to know. Call her. Here’s her phone number in her office. Tell here that you’re against Obamacare and she shouldn’t be for it anymore, etc., etc.’ And this is right before an election.”
In Tennessee, lawmakers are also allowed to use campaign funds to buy tickets to professional sporting events, providing the purchase is described as a legitimate expense for an election or officeholder activity or the tickets are given to “students attending schools, guests or constituents of the candidate or officeholder, or persons involved in the candidate’s or officeholder’s campaign,” The Tennessean reported.
“On the surface, it makes it look like these exemptions are so broad that you can buy tickets for anybody,” said Boucher, who wrote the story for the newspaper.
Weak open records law, strong audits
There also are questions about the state’s open records and open meetings laws. The Tennessee Court of Appeals has ruled that the legislature is not subject to the open meetings law. The advisory committee that serves the Office of Open Records Counsel, which acts as a resource for citizens looking for records, is not subject to the open records law.
The irony of this was not lost on citizen activist Ken Jakes, who complained that the committee was conducting its business out of public view.
“This is the Open Records Counsel, the very one that’s supposed to be telling us that we’re supposed to be having open records,” Jakes said.
At press time, the Tennessee Supreme Court was considering a lawsuit brought by a number of media organizations that could have a dramatic impact on how much information a law enforcement agency can make public during an investigation. Open-records advocates fear that a decision in favor of law enforcement could tempt officials to withhold details on a matter of public safety or even police corruption simply because a case was under investigation.
Tennessee did get high marks in the State Integrity Investigation for its audits. Almost daily, the Division of Audit under the state comptroller chronicles theft, fraud, abuse and waste on the part of state and local government employees. In the Volunteer State, that amounts to a silver lining.