When Gov. Bobby Jindal convened his first special legislative session in early 2008 to ram through a series of "ethics reform" bills, not all reformers were happy with the results. The Public Affairs Research Council (PAR) and the Council for A Better Louisiana (CABL), two high-profile reform groups, were particularly concerned about Jindal-sponsored changes at the state Ethics Board.
Jindal's "reform" package included a bill that took away the "adjudicatory" authority of the ethics board, i.e., the board's power to sit as fact-finder and judge in addition to its traditional role as investigator, prosecutor and executioner. The bill transferred the board's judicial authority to state administrative law judges, who previously toiled in anonymity hearing regulatory appeals. The bill passed handily despite PAR's and CABL's opposition.
Now, after a year under the news system, PAR and CABL appear poised to lead the charge to undo, or at least revise, those changes. They face an uphill battle.
In last year's first special session, opponents of House Bill 41 (including previous members of the Ethics Board) were no match for the new governor's "reform" juggernaut. He not only had public opinion on his side but also the high side of the legal argument. Louisiana courts for years had decried the lack of due process inherent in a system that allowed a single board to "commingle" investigative, prosecutorial, fact-finding and judicial roles. Privately, even the most strident reformers had to admit that the system they sought to defend was flawed.
About the best opponents of the change could muster in the way of argument was to say that Jindal's plan was hastily conceived (which it was) and that transferring adjudicative power to administrative law judges — who are appointed by someone who is appointed by the governor — is hardly an improvement. At best, Jindal's "reform" substituted an abridgment of the separation of powers for a breach of due process. Opponents also argued — correctly but to no avail — that the bill was probably unconstitutional.
Unfortunately for the reform crowd, legislators know that real power in Louisiana derives from the governor, not the constitution. They went with Jindal.
That should have been a lesson to the do-gooders, but they appear to be gluttons for punishment. PAR and CABL, both of which are well intentioned but sometimes a tad naive, now are rallying behind a set of constitutional arguments based on a scholarly "white paper" adopted recently by Jindal's new Ethics Board. (Note to reformers: If you want to make absolutely sure that no one pays any attention whatsoever to your ideas, put them in something called a "white paper.")
In fairness to the board, the white paper makes a lot of good points with regard to constitutional issues, but it does not suggest that the administrative law judges are doing a bad job. In fact, there's no suggestion anywhere that that's the case. And as long as that's the case, undoing Jindal's "reform" is going to be nigh impossible.
Perhaps that's why the Ethics Board concludes by asking Jindal and legislative leaders to punt the entire matter to the scholarly Louisiana Law Institute, which often is asked to unravel legal knots for the Legislature. Just to make sure the Law Institute gets it right, the ethics board recommends that its investigative and prosecutorial roles be jettisoned so it can regain its constitutionally conferred judicial authority. That makes perfect sense, and it comports with the state constitution, which probably seals its fate as a political nonstarter.
Unless, of course, the governor changes his mind.