Milestones on the modern march toward separation of powers
By Peter Hufstader, Research Director, Common Cause Rhode Island (1996-2007)
April 1986
Then-Superior Court Judge Ronald Lagueux rules that legislative appointments to the Rhode Island Coastal Resource Management Council (CRMC) are unconstitutional. Eight of the Council’s 16 members are legislative appointees: two state representatives, two state senators, and four public members. The Speaker of the House appoints six of the eight. Three of the governor’s seven appointments to the CRMC require Senate confirmation.
The day after Lagueux's ruling, the Providence Journal calls on the constitutional convention then in progress to clarify "executive and legislative bounds" in the amendments it would recommend to the voters. Despite the Journal's recommendation, the convention, under tight control of House Speaker Matthew J. Smith, does not confront the issue of Separation of Powers.
March 10, 1987
The Rhode Island Supreme Court, all of whose members have been elected by the General Assembly meeting "in Grand Committee," reverses Judge Lagueux’s ruling. The high court rules that Lagueux improperly raised the question of the CRMC's constitutionality, and that the parties in the dispute had submitted to its jurisdiction.
December 31, 1990
The Rhode Island Share and Deposit Indemnity Corporation (RISDIC), a private insurer of 45 credit unions, declares it is insolvent.
January 1, 1991
Newly sworn in, Governor Bruce Sundlun closes the 45 credit unions formerly insured by RISDIC.
March 14, 1991
A special study commission impaneled by Governor Bruce Sundlun and headed by Brown University President Vartan Gregorian issues Carved in Sand, a report on the collapse of the Rhode Island Share and Deposit Indemnity Corporation.
Gregorian's report explains how oversight fails when legislators have conflicted interests:
"Contributory or compounding causes of the collapse of RISDIC included structural and operational weaknesses of the General Assembly, the Department of Business Regulation, and RISDIC itself. With friends of RISDIC in key positions in the General Assembly's leadership, legislators were unwilling and unable during the mid-1980s to heed various warning signals."
April 1992
Sheldon Whitehouse, then-Executive Counsel to Governor Bruce Sundlun, tells Common Cause of Rhode Island Executive Director Phil West that reformers "will not cut the deep root of Rhode Island's corruption" until they address separation of powers.
December 1992
The Select Commission to investigate the multi-million dollar failure of RISDIC-insured Financial Institutions issues its four-part report. Phase IV of the report is entitled "The Failure of Governmental Oversight."
July 1994
The Common Cause/RI State Governing Board adopts separation of powers as its highest priority. Attorney Robert Kilmarx heads the separation of powers Task Force, a responsibility he will carry until 1999, when Roger Williams University Law Professor Carl Bogus takes over. Each brings legal skill and personal passion to the mission of establishing separation of powers in Rhode Island.
August 1994
During a televised gubernatorial debate, Common Cause state Board Member Greta Abbott asks Republican candidates Lincoln Almond and Ron Machtley whether, if elected, they will work to establish separation of powers in Rhode Island. Both promise that they will.
1995 - 2001
Every year legislators introduce separation of powers bills at the request of Common Cause, but all the legislation is killed in House or Senate committees. Many scoff that it will never happen in Rhode Island. During these years, Common Cause calls public attention to what it calls "power grab bills," legislation seeking to extend the General Assembly's reach into executive agencies and quasi-public bodies by appointing board members who run them. Hearings on these bills provide opportunities for Common Cause to make the case for separation of powers by pointing to patronage hiring, insider contracts, unearned pension benefits and other abuses of power. Common Cause argues that such "power grab bills" would be unconstitutional in the Federal Government and in other states.
Many lawmakers react with angry indignation, but others quietly acknowledge that the problem of legislative appointments is out of control.
Over the years, community and grassroots organizations begin to affirm the need for separation of powers. Among the first to do so are the Environment Council of Rhode Island, the League of Women Voters, Operation Clean Government, Save the Bay and the Rhode Island State Council of Churches.
April 1995
The Rhode Island Bar Journal publishes "The Impetuous Vortex," an essay by United States Attorney Sheldon Whitehouse. Whitehouse draws his title and theme from James Madison's argument in Federalist Paper #48 that legislatures, unless rigorously prevented from doing so, will eventually seek to draw all government powers into their control. In that article and in a later one in the Roger Williams University Law Review, Whitehouse contends that the Rhode Island General Assembly has demonstrated the worst that Madison feared. The key, Whitehouse says, is the legislature's ability to gain influence and control of agencies by appointing members of the boards that run them.
June 1995
Governor Lincoln Almond vetoes legislation that would add two lawmakers to the seven-member Rabies Control Board. The House and Senate quickly override the veto. In this historic first veto for separation of powers, Almond signals his determination to address the issue.
November 15, 1995
The Providence Journal reports that State Senator John Orabona (D-Providence) has retired at the age of 52, claiming public pensions of $106,000 per year based on a total of 79 years worth of retirement credits.
Common Cause presses the Ethics Commission to investigate conflicts-of-interest involving Orabona's service both on the General Assembly's Joint Committee on Retirement that drafts retirement legislation and on the Retirement Board that administers pensions for retirees.
The Ethics Commission does nothing, but General Treasurer Nancy Mayer, a long-time critic of insider pension deals, moves to block Orabona’s state pension.
January 17, 1996
Directors of the Solid Waste Management Corporation (SWMC) fire Thomas E. Wright as Executive Director of the trash disposal agency. Wright reports pressure from state Rep. John McCauley (D-Providence) to hire a five-times convicted felon.
Common Cause asks Speaker John B. Harwood (D-Pawtucket) and Senate Majority Leader Paul S. Kelley (D-North Smithfield) to investigate charges that Wright's refusal to hire the felon is a factor in his dismissal. Neither Harwood nor Kelley replies to repeated inquiries on the matter.
January 28, 1997
By a vote of 61 to 36, the House of Representatives rejects Governor Almond's nomination of then Assistant United States Attorney Margaret E. Curran to fill a vacancy on the state Supreme Court. It later emerges that Curran is rejected because she would not promise House leaders that she would be "safe" in any separation of powers cases that might reach the high court.
Almond eventually picks Maureen McKenna Goldberg from a list provided by the Judicial Nominating Commission. She breezes through confirmation and proves a safe majority vote for the status quo.
May 1997
At the urging of Common Cause, the Rhode Island Ethics Commission concludes that it is an inherent conflict-of-interest for lawmakers to both write the laws and then serve on the boards that execute them. The panel's new regulation also outlaws legislative appointments to boards and commissions with executive powers.
Governor Lincoln Almond assures separation of powers advocates that he will ask the state Supreme Court to issue an advisory opinion as to whether the Ethics Commission has the constitutional power to ban legislative appointments to state boards. After careful preparation, Almond files the request in November 1997.
The Common Cause separation of powers Task Force initiates a 50 States Project, to analyze the role played by legislators and legislative appointees in quasi-public agencies across the country. Led by volunteer Peter Hufstader, the project documents how far Rhode Island practice has deviated from the practices of other states.
January 21, 1998
Rep. Christine Callahan (R-Middletown) publicly resigns her seats on the Lottery Commission and the Economic Development Corporation saying, "Our rightful role in the General Assembly is that of true legislative review and oversight, and not direct participation on commissions and boards that we create and fund in the first place."
March 1998
Common Cause files a brief in support of the Ethics Commission's ban on lawmakers' serving on boards and commissions that execute laws. The League of Women Voters, Rhode Island State Council of Churches and RedAlert all join the Common Cause brief. The Environment Council of Rhode Island and Operation Clean Government decide to file separate briefs supporting separation of powers.
April 26, 1999
The Rhode Island Lottery Commission votes 5-4 to allow the Lincoln Greyhound Park and Newport Jai Alai fronton to add 850 new video lottery slot machines to their operations. Six of nine members of the Lottery Commission are sitting state legislators. Daniel V. McKinnon, law partner of House Speaker John B. Harwood (D-Pawtucket) serves as counsel to the owners of the gaming facility.
May 7, 1999
Governor Almond petitions Superior Court to bar the Lottery Commission from acting on its recent vote because the membership of the state Lottery Commission violates the doctrine of separation of powers.
June 10, 1999
Superior Court Judge Michael A. Silverstein blocks the installation of 850 new video slot machines at Lincoln Greyhound Park and Newport Jai Alai. "The issue here," the judge says, "is whether what [the General Assembly] has done by requiring two-thirds of the commission be legislators infringes on the governor's constitutional obligations."
June 29, 1999
In response to Governor Almond's November 1997 request for an advisory opinion, the state Supreme Court rules, 4 to 1, that the Ethics Commission exceeded its authority in prohibiting legislators from sitting on boards and commissions. The ethics panel had also prohibited legislators from appointing others to boards.
From the majority opinion:
...article 6, section 10, of the 1986 Constitution specifically reaffirms the General Assembly's unfettered right and power to "continue to exercise the powers it has heretofore exercised, unless prohibited in this Constitution." (P. 11)
...legislative appointment of executive-type boards has been a long-standing practice in this state...as early as 1844...
Thus, Rhode Island's history is that of a quintessential system of parliamentary supremacy. (P. 15. Emphasis added) ... only the people of Rhode Island may change the structure of their government...
We suggest that the sole and proper procedure for restricting legislators from serving on or appointing "any other person" to executive boards and commissions is through an amendment to the constitution approved by the electorate, not by an ethics regulation. (P. 30)
In re: Advisory Opinion to the Governor (Rhode Island Ethics Commission -- separation of powers). Supreme Court No. 97-572-M.P.
Justice Robert Flanders issues a sharp dissent: "[The Supreme Court's] loss of legal vision risks plunging the people of this state into a long, dark age of subjugation to unchecked, unbalanced and unlimited governmental powers exercised by controlling members and subparts of the Legislature."
August 24, 1999
Edward Achorn, a new editor at the Providence Journal, publishes the first in a relentless series of columns that target Rhode Island's casual acceptance of political corruption and its dangerously unrepresentative form of state government. The remedy, Achorn will tell readers many times in coming years, is constitutional separation of powers.
October 27, 1999
Superior Court Judge Michael Silverstein rules that the makeup of the Rhode Island Lottery Commission is unconstitutional by virtue of its legislative members. The commission appeals this ruling to the Supreme Court.
July 27, 2000
By a vote of 3 to 1, the Supreme Court reverses Silverstein. The majority rules that nothing in the state constitution prohibits the legislature from appointing its members to boards and commissions, or from controlling those boards through legislative majorities. Indeed, the court rules that the legislature may exercise any authority it wants unless the state constitution expressly forbids it.
From the opinion:
...we perceive no basis for holding that the legislature may not provide by statute for the creation of a commission consisting of a majority of members appointed from both Houses of the General Assembly with or without including representation from gubernatorial appointees. (P. 12)
...the Rhode Island Legislature (unlike Congress) need not look to the state Constitution as a source of authority by virtue of its historical plenary power [Article VI section 10] preserved in both the 1843 and 1986 Constitutions. It may exercise any power unless prohibited in this Constitution. (P. 17. Emphasis added)
The Rhode Island Constitution does not prohibit the appointment of legislators to administrative boards and commissions. These boards...then may exercise all the powers that administrative agencies have traditionally exercised in both the federal and state systems of government. (P. 17)
Lincoln C. Almond, in his capacity as Governor of the State of Rhode Island et al. v. The Rhode Island Lottery Commission, Newport Grand Jai Alai, LLC, and Burrillville Racing Association, d.b.a. Lincoln Greyhound Park et al. Supreme Court No. 99-525-Appeal. (PV 99-2323)
August 2000
Governor Almond places a non-binding question on the November ballot. Ballot Question 6 reads:
Should a Constitutional Convention be called to expressly establish that Rhode Island government consists of separate and co-equal legislative, executive, and judicial branches similar to the governments established by the United States Constitution and the Constitutions of all 49 other states?
A coalition of reform groups mounts a grassroots campaign, urging the Rhode Islanders to vote YES on Question 6.
Leaders in the effort include Common Cause, the Environment Council, the League of Women Voters, Operation Clean Government, RedAlert, and the Rhode Island State Council of Churches.
September 15, 2000
Common Cause of Rhode Island publishes Democracy Betrayed; Conflicts of Interest and Failures of Oversight in Rhode Island State Government. The white paper summarizes scandals that have arisen because state law empowers lawmakers to exercise executive powers. Chapters focus on the State Retirement System, the Narragansett Bay Commission, the Coastal Resources Management Council, the Lottery Commission, the Resource Recovery Corporation, and the Unclassified Pay Plan Board.
November 7, 2000
Voters approve Question 6 in a statewide vote of 218,139 to 111,292 (66.2% to 33.8%). Among 39 cities and towns in Rhode Island, only West Warwick (at 59.4%) passes the measure by less than sixty per cent.
February 8, 2001
Rep. Nicholas Gorham (R-Coventry) introduces legislation (01-H 6022) to establish a commission to begin work on a Constitutional Convention focused on separation of powers, as urged by voters in their approval of Question 6. The bill is assigned to the House Judiciary Committee, which ignores it.
June 28, 2001
On the last day of the legislative session, after frustrating attempts to get a hearing and vote on his bill, Gorham invokes a House rule to force debate and a floor vote. House leaders kill the bill by a vote of 58 to 25. Thirteen Democrats and twelve Republicans cast the first recorded votes in either chamber in favor of separation of powers.
Fall 2001
The Common Cause separation of powers Task Force organizes a grassroots network across Rhode Island to increase pressure in the 2002 legislative session. Prominent in communications to concerned citizens is the voting record of House members who killed Gorham's separation of powers resolution on the last night of the session.
January 29, 2002
Hundreds of citizens pack the State Room for a Common Cause press conference in support of newly-introduced separation of powers legislation. Those who join the call include Governor Almond, all the candidates for governor, a bipartisan group of Senators and Representatives, and leaders of many community organizations.
Four House and three Senate separation of powers bills are introduced, by far the largest number in any legislative session since the modern separation of powers movement began in 1994. Most of these bills propose placing an amendment on the ballot in the 2002 general election.
March 26, 2002
A separation of powers bill by Rep. Nicholas Gorham (02-H 7050) gets a hearing in the House Judiciary Committee. When the bill is announced, Chairman Robert Flaherty (D-Warwick) and most committee members leave the room. With only five Judiciary Committee members present, more than twenty witnesses testify in support of Gorham's legislation. No one testifies against it.
Common Cause rallies members in the districts of Judiciary Committee members. A week later, with members of the Judiciary Committee absent, members vote "non-passage" by a narrow margin of 10-8.
April 10, 2002
Speaker John B. Harwood places Rep. Gorham’s proposed constitutional amendment on the House calendar. Again, as they had on June 28, 2001, House leaders move to kill the bill. This time, however, the Speaker’s margin drops to 11, with 49 votes to recommit and 38 votes for a full debate and a public vote.
Harwood’s parliamentary victory proves a public relations disaster. Talk shows and political columns pound House leaders.
May 29, 2002
After a four-hour hearing, the Senate Committee on Special Legislation votes overwhelmingly to send two separation of powers bills to the full Senate with a recommendation of passage.
May 30, 2002
The Rhode Island Senate passes two separation of powers amendments: 02-S 2288SubA by Sen. Michael Lenihan (D-East Greenwich) and 02-S 2440 by Sen. Dennis Algiere (R-Westerly). The vote is 40 to 6 for each bill. Both are assigned to the House Judiciary Committee, where they die without a hearing or vote.
June 2002
Rep. Nicholas Gorham collects signatures on a “discharge petition” to bring his bill back onto the House floor for a full debate. Forces loyal to Speaker John Harwood make an all-out effort to prevent representatives from signing the petition. By the last day of the session, Gorham has collected 38 signatures on the discharge petition, two short of the required 40.
Reps Elizabeth M. Dennigan (D-E. Providence) and Thomas A. Palangio (D-Providence) charge that funds for neighborhood groups that serve the handicapped were cut to punish their advocacy of separation of powers and other reforms. A third representative, Rep. David A. Caprio (D-Narragansett) charges that House leaders have punished him for supporting separation of powers. He says the Speaker has sacked his district committee and appointed substitutes who then promptly endorsed a primary challenger.
Common Cause files a public records request for data about legislative grants. After a month without reply, Executive Director H. Philip West, Jr., files a public records complaint with the Attorney General. When partial records are released, analysis shows that recipients of the largest grants have poor records of voting for reforms, particularly separation of powers. Meanwhile, those with the strongest reform voting records receive the smallest legislative grants.
July 2002
The Rhode Island Separation of Powers Committee (RISOP) forms to publicize the positions of legislators on separation of powers. Former Congressman and Bryant College President Ron Machtley and Hasbro CEO Alan Hassenfeld serve as Co-Chairpersons. Operation Clean Government founder Bruce Lang becomes RISOP President, with Vice Presidents Carl Bogus, Burt Hoffman and Bob Cox, all members of the Common Cause SOP Task Force. RISOP asks all candidates for election and re-election whether they will support or oppose separation of powers reforms. Candidates are informed that the results will be communicated to the voters, including failures to respond.
Common Cause assists in framing another ballot question that Gov. Lincoln Almond places on the November ballot:
Should the Rhode Island Constitution be changed to eliminate Article VI, Section 10, which preserves to the General Assembly today broad powers granted to it by King Charles II of England in 1663 and also be changed to expressly provide that the legislative, executive, and judicial branches of Rhode Island government are to be separate and co-equal consistent with the American system of government?
A broad coalition mounts a grassroots campaign to secure approval of Question 5. Eleven groups mobilizing their members in the effort: American Association of University Women, Chambers of Commerce (Greater Providence, Hispanic-American, Northern Rhode Island), Common Cause, the Environment Council, the League of Women Voters, Operation Clean Government, RISOP, Save the Bay, and the Rhode Island State Council of Churches.
August 15, 2002
WHJJ talk show host John DePetro reports that a former House employee named Wendy Collins has received $75,000 from the state, apparently for dropping a sexual harassment charge from a Workers’ Compensation claim. This disclosure begins a steady erosion of Speaker Harwood’s control of the House.
September 6, 2002
RISOP publishes the first of a series of large ads in the Providence Journal listing House and Senate candidates’ positions on separation of powers. Some formerly die-hard opponents have signed statements that they will vote for separation of powers reforms if elected. Others continue to oppose reforms.
September 10, 2002
Although voter turnout is poor, House candidates supported by Speaker Harwood win by narrow margins or are defeated in the Democratic primary. Supporters of separation of powers are victors.
September 2002
In the face of widespread demands that he resign as Speaker, John B. Harwood calls the first public meeting of the Joint Committee on Legislative Services. Democratic Representatives begin announcing they will not support Harwood for re-election as Speaker.
October 9, 2002
Bruce Bayuk, a resident of the Speaker’s Pawtucket district and separation of powers supporter, announces that he will run as a write-in candidate for the House seat.
November 5, 2002
Republican Donald Carcieri is elected governor. In General Assembly races, several separation of powers opponents lose; others win by narrow margins. Speaker Harwood barely squeaks by write-in challenger Bruce Bayuk amid evidence of voting irregularities and charges of voting fraud. After investigations and recounts by the Board of Elections, Harwood remains the victor. Rhode Island voters approve Question 5 on separation of powers by a statewide vote of 223,151 to 69,748 (76.2% to 23.8%). Tiverton (at 69.6%) is the only municipality to approve the question by less than seventy per cent.
November 7, 2002
House Democrats elect Rep. William J. Murphy (D-West Warwick) as Speaker and Rep. Gordon D. Fox (D-Providence) as House Majority Leader.
November 14, 2002
At the invitation of Common Cause, a bipartisan group gathers in the office of Attorney General Sheldon Whitehouse, a Democrat, to draft a possible constitutional amendment. Present are Whitehouse, Rep. Nicholas Gorham (R-Coventry), Sen. J. Michael Lenihan (D-East Greenwich), Jeffrey Lanphear (representing Senate Minority Leader Dennis Algiere), Jeffrey Grybowski (representing Governor-elect Donald Carcieri), Roger Williams University Law School Professor Carl Bogus, and Common Cause state director H. Philip West, Jr. Sen. Mary A. Parella (R-Bristol) was not able to attend because of a scheduling conflict.
The group drafts a sparsely worded amendment whose essential elements include: (1) a ban on dual office-holding, (2) a strong executive appointments clause, (3) a declaration that the legislative, executive and judicial branches shall be “separate and co-equal,” and (4) removal of the broad powers clause (Article VI, Section 10) that the Supreme Court has twice used to say the state has legislative supremacy.
December 11, 2002
Leaders from a broad range of civic, business, environmental, reform and ecumenical groups gather at the First Unitarian Church in Providence for a briefing on the bipartisan SOP draft. Members of the bipartisan SOP drafting committee explain their proposal and urge those present to seek public support from their boards.
January 4, 2003
Common Cause learns that the 3rd District Court of Appeals in Sacramento has ruled that the California Coastal Commission violates the state constitution’s separation of powers provisions. A majority of the commission’s members are appointed by the legislature.
January 7, 2003
Donald L. Carcieri is inaugurated as governor. From his inaugural address: “We must enact a constitutional amendment that clearly separates the power between the executive and legislative branches . . . This is not a condemnation of the members of the General Assembly – only of the system – one that is ill-serving us.”
The House formally elects Rep. William J. Murphy as Speaker to replace the disgraced John B. Harwood. Murphy files a resolution (03-H 5003) asking the House Rules Committee to create a standing Committee on separation of powers. He says some see separation of powers “as an antidote to the lopsided power the legislature has in Rhode Island.”
Bipartisan House and Senate separation of powers bills are filed in the House by Rep. Nicholas Gorham, (R-Coventry) and in the Senate by Sen. J. Michael Lenihan (D-East Greenwich). Both previously sponsored separation of powers legislation that was crushed by forces loyal to then-House Speaker John B. Harwood. Thirty-five of 38 senators, including Senate President William V. Irons (D-East Providence), Senate Majority Leader Joseph A. Montalbano (D-North Providence) and Senate Minority Leader Dennis L. Algiere (R-Westerly), cosponsor Lenihan’s legislation (03-S 0180); 38 of 75 representatives (11 Republicans, 26 Democrats and one Independent) cosponsor Gorham’s legislation (03-H 5081).
Two weeks later, Rep. Fausto C. Anguilla (D-Bristol) files a bill (03-H 5360) that differs sharply from Gorham’s. Forty-three Democrats sign on as backers of the Anguilla bill. Of the 43 co-sponsors, 29 had voted with House leaders against Gorham’s separation of powers bill on June 28, 2001, and 21 voted the same way on April 10, 2002.
March 10, 2003
The Senate Committee on Governmental Oversight chaired by Sen J. Michael Lenihan holds the first hearing on his and Sen. Connors’ separation of powers bills. Common Cause Executive Director H. Philip West, Jr., and Research Director Peter Hufstader present the committee with copies of Common Cause’s Separation of Powers Reference Manual. The manual contains salient information on Rhode Island Boards and commissions and on relevant constitutional provisions in Rhode Island and the other states.
March 12, 2003
The newly-created House Separation of Powers Committee holds its first hearing on the Gorham and Anguilla bills. After West and Hufstader present copies of the reference manual, Gorham and Anguilla testify on their own bills and answer questions posed by committee members. It quickly becomes apparent that a majority of the committee favors the Anguilla bill.
March 17, 2003
The Lenihan committee holds its second and last hearing on the Lenihan separation of powers bill. At the conclusion of the hearing, the committee unanimously recommends passage of the bill, which is placed on the Senate calendar three days later.
March 19, 2003
Rep. Gorham and three expert witnesses testify on the Gorham bill. The experts are all from Rhode Island: Carl Bogus, professor of law at Roger Williams University; Ross Cheit, professor of political science at Brown University; and James Marusak, an attorney and student of Rhode Island history. Cheit’s testimony is informed by his authorship of the Gregorian Report on the 1991 banking crisis which closed 45 credit unions and financial institutions supposedly insured by the insolvent Rhode Island Share and Deposit Indemnity Corporation (RISDIC).
March 26, 2003
The Senate passes the Lenihan separation of powers bill 36-0. The same day the House Separation of Powers Committee’s hearing is devoted to the Anguilla separation of powers bill, H 5361. After hearing Rep. Anguilla’s testimony and responses to committee questions, the committee hears from Maureen Moakley, professor of political science at the University of Rhode Island.
April 2, 2003
Three experts from Rutgers University in New Jersey testify in favor of the Anguilla separation of powers legislation. The three have been flown in and accommodated at House expense. Their testimony, as has been the case in all previous House Separation of Powers Committee hearings, is followed by testimony from the general public, which has been overwhelmingly in favor of the Gorham bill over the Anguilla bill.
April 9, 2003
More expert testimony is heard against the Gorham bill. The only expert witness who testifies this evening is a former professor of history at Providence College Patrick T. Conley, the author of Democracy in Decline, a study of the history of Rhode Island’s first constitution as well as other scholarly books and pamphlets.
April 18, 2003
Bruce Lang, President of the RISOP announces that the coalition of state-wide groups supporting the Gorham-Lenihan bill has grown to 32. The list represents a broad spectrum of Rhode Island’s public organizations: American Association of University Women, Aquidneck Island Clergy Association, Central Rhode Island Chamber of Commerce, Citizens Concerned about Casino Gambling, Coalition for Consumer Justice, Common Cause Rhode Island, Conservation Law Foundation, Cranston Chamber of Commerce, East Greenwich Chamber of Commerce, Energy Council of Rhode Island, Environment Council of Rhode Island, Environmental Committee of the Diocese of Providence, Greater Providence Chamber of Commerce, Hispanic-American Chamber of Commerce, Jamestown Town Council, Kay Coalition Against Casino Gambling, League of Women Voters, Manufacturing Summit, Newport City Council, Newport County Chamber of Commerce, Northern Rhode Island Chamber of Commerce, Operation Clean Government., Portsmouth Concerned Citizens, Priests for Justice (Diocese of Providence), Rhode Island Public Interest Research Group, Rhode Island Separation of Powers Committee (RISOP), Rhode Island State Council of Churches, Rhode Island United Methodist Association, Save The Bay, Sierra Club Rhode Island, Unitarian-Universalist Churches, Urban League of Rhode Island.
April 24, 2003
Phil West e-mails representatives of the Separation of Powers coalition, “Speaker Murphy promised me today with a handshake that he will give us [the House leadership’s substitute] bill text by 3 PM Monday. He emphasized that this may not be a final SubA, but few of us doubt it will be much closer to the Gorham bill … than to the Anguilla bill … “ Back-to-back meetings of the bipartisan drafting committee and the Separation of Powers coalition are scheduled for the following Monday.
April 28, 2003
The coalition meets at the First Baptist Church in America with approximately thirty representatives representing eleven organizations. Common Cause President James C. Miller, the Senior Minister at First Baptist, leads a discussion that reaches consensus on several points:
House leaders, both Republicans and Democrats, inform Common Cause that they have reached agreement on a new text of the Gorham bill and that they will announce it at a press conference. The amended version of the bipartisan Gorham bill (03-H 5081SubA) uses “separate and distinct” in Article V in place of “separate and co-equal,” and it deletes the broad powers clause (Article VI, Section 10) entirely. It amends Article VI section 2 by adding four words to a provision that is remarkably like comparable provisions in 44 other state constitutions. The amended section would read as follows:
Section 2. Power vested in general Assembly – Concurrence of houses required to enact laws – style of laws. The full legislative power, under this Constitution, shall be vested in and exercised by two houses, the one to be called the senate, the other the house of representatives; and both together the general assembly. The concurrence of the two houses shall be necessary to the enactment of laws. The style of their laws shall be, It is enacted by the general assembly as follows: …
After a round of State House meetings, Speaker William J. Murphy says he will allay concerns raised by Common Cause that this language could open the door to legislative control of rule-making of administrative agencies. Murphy promises to state that intention in a press conference on May 15.
May 15, 2002
House Speaker William Murphy, House Majority Leader Gordon Fox hold a press conference attended by members of the House Separation of Powers Committee and representatives of the reform community to announce the amended Gorham bill. The leaders also tell those attending that Rep. Fausto Anguilla has graciously agreed to withdraw his bill.
In his opening remarks, Speaker Murphy reminds his audience that the unveiling of the revised Gorham bill is the fulfillment of a promise he and his leadership team had made at the beginning of the 2003 legislative session: that the House would pass a separation of powers bill during the session.
“This exercise has proven that the deliberative legislative process works,” Murphy ended. “I’m proud that we were able to bring all the parties together – after much debate – and reach an agreement on what we believe will be the best bill for the people of Rhode Island.”
Aware of the widespread concern over the language added to VI-2, Speaker Murphy tells those attending the press conference, “I can stand here and say with this new language, it is not the intent of the House of Representatives in any way to undermine the administrative [rules] process …” (Providence Journal, May 16, 2003)
Majority Leader Gordon S. Fox speaks in a similar vein. “I am proud that in the four short months since our new leadership team began, we have addressed the issue, we have analyzed it, and we reached consensus. In a few short days, Separation of Powers will be brought to the Floor of the House for the first time. … I am proud to stand with Speaker Murphy as a part of a new leadership team … “
May 19, 2003
Members of state-wide Separation of Powers Coalition gather at the First Baptist Church in America to discuss the coalition’s stance on the revised 5081. Among those present: Senator J. Michael Lenihan, D-E. Greenwich, sponsor of the separation of powers bill passed by the Senate in April; Rep. Nicholas Gorham, R-Coventry, sponsor of H 5081; Bruce Lang of the Rhode Island Separation of Powers Committee; H. Philip West, executive director of Common Cause/RI; the Reverend James Miller, president of Common Cause/RI; and Sheldon Whitehouse, former attorney general and considered by many "the father" of the separation of powers movement. Also in attendance is Providence Journal Staff Writer Liz Anderson, a member of the Journal’s State House staff.
It becomes quickly clear that the meeting is divided between two opposing points of view: to agree to the amended bill as written; or to remain loyal to the original Gorham bill, which contained the phrase "separate and co-equal" in Article V and left Article VI-2 intact.
Among those urging compromises are, not surprisingly, the bill's primary sponsor, Rep. Gorham, who tells the gathering of some 40 people that he sees no difference whatever between "Legislative power," "The legislative power," or "Full legislative power." "They are indistinguishable from each other," Gorham tells his listeners.
With respect to fears about a legislative takeover of executive agencies' rule-making authority, Gorham avers that the delegation of rule-making power has also been and would remain a part of "legislative powers," as is the ability to enact statutes that alter or abolished individual agency rules. Nothing would change under the rewritten 5081.
Sheldon Whitehouse advocates asking the House Separation of Powers Committee to make a formal statement, to be read into the House record, that it has no intention of arrogating to itself the rule-making authority of executive agencies.
Attorney Kevin McAllister, a member of the Common Cause Board of Governors, says that the proposed additions to VI-2 make him "queasy," and when that language is conjoined with the replacement of "separate and co-equal" with "separate and distinct," his queasiness becomes more intense. Others echo the spirit if not the substance of McAllister’s words.
After two hours of discussion, the meeting approves a statement affirming the coalition's support of the original Gorham bill and praising the House for coming so far in approving a bill that contained so much of what the reform community had sought since 1994.
May 20, 2003
The House Separation of Powers Committee convenes at approximately 5 PM in Room 35 of the State House. The first witnesses to testify are H. Philip West, Jr., executive director of Common Cause/RI, and Carl T. Bogus, professor of law at Roger Williams University and chairman of the Common Cause Separation of Powers Task Force. West gives the committee copies of a Common Cause study of state constitutions that show that no other state uses the language that has been proposed to be added to Article VI-2 of the Rhode Island Constitution. In fact, the present VI-2 is virtually identical to the language in comparable provisions of 44 other state constitutions. "Why add language that is found in no other state constitution?" West asks the committee rhetorically. "What is your intent?"
Prof. Bogus tells the committee, "As sure as I am sitting here, those added words are going to be the focal point of some future court action. We don't know when; we don't know what the particular cause will be; and we don't know who the advocates will be. But it will happen."
Other witnesses repeat the concerns that sprung up with the unveiling of the revised 5081: that the four words added to VI-2 were a veiled attempt by the House to control executive agencies' rule-making.
In what all agree is an extraordinary step, the House Separation of Powers Committee agrees to issue an official report stating that that is not the intent of the revised VI-2.
The committee then votes to recommend passage of 03-H 5081 Substitute A. The vote is unanimous.
It is the first time that a House committee has ever recommended passage of a bill limiting the Assembly's powers and broadening the governor's. The bill is then placed on the House floor calendar for May 22.
May 21, 2003
Speaker Murphy places 03-H 5081SubA at the head of the House floor calendar. Representative Elaine Coderre, (D-Pawtucket) and chair of the House Separation of Powers Committee, moves passage. Her motion is seconded by almost all of the representatives in the chamber.
The speaker then recognizes a series of representatives who speak on the bill. First is Rep. Fausto Anguilla, who had sponsored a rival separation of powers bill at the speaker's request, a bill which he had withdrawn also at the speaker's request, apparently after the leadership had decided to focus its efforts on the Gorham bill rather than his. Anguilla spoke of his satisfaction with a deliberative process that served the people's interests.
Others are less sanguine about the vote the chamber is about to cast. Representative Thomas Slater, (D-Providence) speaks angrily about the pressure he received from reform groups about separation of powers during the 2002 election campaign and described the vote he is about to cast as a "reluctant yes." He blames reform groups for past changes, including the down-sized General Assembly.
Rep. Paul Crowley, (D-Newport) and vice chair of the House Separation of Powers Committee, (Crowley was very nearly defeated in the 2002 campaign by a 19-year-old challenger over the issue of separation of powers) speaks to the challenges that would face an under-funded, under-paid, under-staffed citizen legislature in providing oversight of the executive branch.
Rep. Robert Lowe, (D-Smithfield), who served for some years as one of three legislative members of the Rhode Island Resource Recovery Corporation, warns reformers to be careful what you ask for: you might get it. Lowe is repeating an oft-heard caution by opponents of separation of powers reforms that un-imagined dangers lurk within the Doctrine of Separation of Powers, in force everywhere in the United States but Rhode Island since 1788.
Rep. Susan Story, (R-Barrington) and a member of the House Separation of Powers Committee, asks the speaker to have the committee's statement disavowing any intention to meddle with executive rule-making read into the record. It is so ordered and so done.
Rep. Paul Moura, (D-Providence) a long-time foe of separation of powers reforms until the 2002 fall from grace of his patron, former House Speaker John B. Harwood, also speaks in support of 5081 as amended. Moura's increasingly passionate remarks contain a veiled reference if not a threat to "someone on the other side of the rotunda," a possible allusion to Senate President William V. Irons, (D-Pawtucket.)
Rep. Nicholas Gorham, (R-Coventry) and sponsor of 03-H 5081aa, thanks his constituents for voting him back into office. He is clearly elated at the final success of his three-year battle to bring a separation of powers bill to the House floor.
House Majority Leader Gordon Fox is the last to speak. His discursive, emotional speech refers repeatedly to the pride the House should feel in the accomplishments of its Separation of Powers Committee and in the vote the House is about to cast.
And then the speaker calls for the vote. At that point, Murphy's predecessor in the speaker's chair, Rep. John B. Harwood, (D-Pawtucket) leaves the House floor. He did not vote on the measure. Harwood became speaker in 1993. His opposition to separation of powers had doomed all previous attempts to place separation of powers amendments before the voters.
"Shall H 5081 as amended pass? All those in favor, press the green button." The vote is 71-1 for passage. The lone negative is cast by Rep Joseph Faria, (D-Central Falls.) In addition to Harwood, who is present but left the chamber before the vote, Rep. Peter Kilmartin, (D-Pawtucket) is absent. One House seat is recently vacated by the death of Rep Stephen Anderson, (D-Coventry.)
May 21 – June 4, 2003
An intense dialogue ensues via e-mail and phone calls across the state among proponents of separation of powers as to how to react to the five-word difference between the House and the Senate: stand firm in support of the original Gorham-Lenihan bill, or accept some compromise version?
May 27, 2003
The House transmits the Gorham bill, as amended, to the Senate, where it is assigned to the Senate Committee on Government Oversight. On June 2,at 8:39 AM, the Senate Committee on Government Oversight posts a hearing for June 4 on a number of bills of interest to Common Cause. One of them is 03-H 5081aa, the revised Gorham bill on separation of powers passed by the House.
June 4, 2003
At approximately 5:10 PM. Sen. J. Michael Lenihan convenes the hearing of the Senate Committee on Government Oversight. After disposing of other bills on the agenda, Sen. Lenihan calls witnesses to testify on 03-H 5081aa. Among those who speak: Rep. Gorham, the bill’s principal sponsor; former Attorney General Sheldon Whitehouse; H. Philip West, executive director of Common Cause/RI; Carl T. Bogus, professor of law at Roger Williams University; Robert Arruda, president of Operation Clean Government; Bruce Lang, president of the Rhode Island Separation of Powers Committee (RISOP); and Christopher Hamblett of Save the Bay and the Rhode Island Environmental Council. No witnesses testify against the Gorham bill.
Common Cause's Phil West praises the Senate and House for conducting the debate on separation of powers in a civil manner, in contrast to past constitutional upheavals which took place in an aura of violence or conflict.
Sheldon Whitehouse calls "separate and distinct" acceptable, "workmanlike" language which appears in other state constitutions. He also testifies that the history of this period in Rhode Island will make it clear that the repeal of Article VI section 10 did nothing more than roll the legislature’s powers back inside the boundary between the legislative and executive branches. With respect to "and exercised by," however, Whitehouse testifies that he feels "queasy." The phrase could be interpreted, Whitehouse testifies, to bar the legislature from delegating to administrative agencies the power to establish rules and enforce them, as is now universally done.
Save the Bay's Hamblett has heard a number of lawyers give diametrically opposite accounts of what "full … and exercised by" mean. "If there is this much disagreement," Hamblett testifies, "that's a good reason not to add those four words."
At the conclusion of the meeting, Sen. Lenihan announces that the committee will meet the following Wednesday and promises that it would send to the full Senate a "strong" separation of powers bill. He is warmly applauded.
June 11, 2003
Sen. Lenihan convenes the promised hearing of the Committee on Governmental Oversight at about 5:35 PM. The members of the committee are joined by Sen. President Irons and Majority Leader Montalbano.
Lenihan explains to the live and television audiences that negotiations with House leaders over the controversial four words have been fruitless. The committee, therefore, intends to amend the Gorham bill so that it is identical to a new bill (S 1140) he introduced earlier in the day. 03-S 1140 is identical to the Gorham bill save in one important aspect: where the Gorham bill adds the four controversial words to Article IX section 2, the Lenihan bill omits VI-2. When the Gorham bill has been amended to remove the four crucial words and to correct out some typographical errors, the committee will vote to send both bills to the Senate floor with a recommendation of passage.
After the motions to amend the Gorham bill have been made and seconded, Lenihan calls witnesses to testify. All thank the committee for bringing the campaign for separation of powers so far. All support the proposed compromise, as do Irons and Montalbano when they too speak.
The committee then votes unanimously to send both S 1140 and H 5081aa to the Senate with a recommendation of passage. Irons and Montalbano also cast "aye" votes.
June 12, 2003
In the morning both 03-S 1140 and 03-H 5081aa are posted on the Senate's Floor calendar for that day. When the session convenes, the full Senate unanimously approves the amendments Sen. Lenihan proposes to 03-H 5081aa as well as some minor changes to 03-S 1140. There is no discussion. Then the Senate unanimously approves both bills as amended. The vote is 36-0 on both bills, which are immediately transmitted to the House, where they are assigned to the Committee on Separation of Powers and essentially vanish from public view.
From that point forward, there is no activity on either bill in the House. No hearings on the bills are posted. No public statements are made by the House leadership about either bill.
June 15, 2003
The separation of powers bills are not forgotten, however. On this date the Providence Journal publishes a commentary essay on separation of powers by John Hazen White Jr., president of Taco and a member of the Manufacturing Summit, one of 33 organizations that publicly endorsed the Lenihan-Gorham legislation (White is also the son of John Hazen White, a long-time supporter of separation of powers who died in 2002). White's essay, entitled "Beware SOP hanky-panky," warns the public that the House leadership may be trying to stall on separation of powers until the session is over. It may be the first or one of a very few printed statements supporting separation of powers reforms by a member of the Rhode Island business-manufacturing community. On the same day the Journal publishes an editorial entitled "Last-minute conniving" which echoes White's warning.
June 17 - 27, 2003
Providence Journal deputy editor Edward Achorn was a supporter of separation of powers reforms almost from the moment he first entered his fourth-floor office. On June 17, in a column entitled "Fairness put to the test in Rhode Island," Achorn warned his readers, "As I write this, House leaders are threatening to kill the whole [SOP] reform rather than compromise on one word: "full," appended to "legislative power." Why they insist that 'full' be used in describing legislative power — but not executive or judicial power — is anyone's guess."
One week later, in a column entitled "Legislators' contempt for citizens," Achorn discusses what appear to be attempts by disgraced former Speaker John B. Harwood, a long-time and inveterate foe of separation of powers reforms, to regain power. Indeed, Achorn wonders if Harwood is not actually "calling the shots" already in the State House. In the last two paragraphs, Achorn repeats his warning: "House leaders are balking at getting separation of powers through the General Assembly because of one word: 'full'." "Achorn concludes, "If they fail to get reform done in this session, and an amendment safely placed on the 2004 ballot, that will be more than business as usual. It will be an open declaration of war on the voters of Rhode Island. As much as the Ocean State voters are willing to let the General Assembly abuse them, it is hard to imagine their refusing to fight back on that one." (Original emphasis).
On June 26, the Journal publishes a commentary essay by H. Philip West, Jr., executive director of Common Cause/RI. Its title: "Four-letter word threatens reform." The four-letter word is, of course, "full." After rehearsing the reasons to remove it and its companion additions, "and exercised by," from the reform legislation, West concludes, "Now is the time for those who want genuine separation of powers in Rhode Island to urge their representatives to pass the Lenihan-Gorham amendment as it has been modified by the Senate. No need for 'full.' No more changes."
And on Friday, June 27, the Providence Journal runs an article by staff writer Liz Anderson headlined "Separation of powers agreement in words." Anderson focuses on a reported "compromise on language for a separation-of-powers constitutional amendment" which House Speaker William Murphy reportedly told Anderson would be voted on the following Monday, June 30. While details of the compromise have still not been released, it appears that the House is ready to give up "full … and exercised by" in return for a preamble to the bill "intended to protect their [the legislature's] legitimate legislative work."
The House apparently made the offer of this trade-off "in private" on Tuesday, June 24. According to Sen. President William V. Irons, (D-Pawtucket) the preamble would be "just a parenthetical statement about what was intended – it’s not law, it is not going to be in the Constitution." As of June 26, however, the wording of this preamble had not been made public, nor had Irons or Sen. J. Michael Lenihan, (D-East Greenwich) seen it. "I want to see something on paper," Lenihan reportedly told Anderson.
June 30, 2003
The amended SOP bills appear. The House has added some "whereas" clauses at the beginning of the legislation but has left the constitutional amendments, as modified by the Senate, intact. That means "separate and distinct" branches of government in Article V; the repeal of Article VI section X; the removal of "full … and exercised by" which the House had added to Article VI section 2; and the gubernatorial appointments clauses in Article IX.
Common Cause attorneys Alan Flink and Kevin McAllister approve the language of the "whereas" clauses. The bill reportedly will be the first item of business when the House convenes this afternoon.
June 30, 2003
Both houses of the General Assembly unanimously pass the bill containing the package of separation of powers amendments to the Rhode Island Constitution. Passage means the amendments will appear on the ballot in November, 2004 as Question 1.
June, 2004
The Senate passes bills amending the composition of boards and commissions to comply with the separation of powers amendments when they pass, as expected, in November. The bills are assigned to the House Committee on Separation of Powers, where they die.
November 2, 2004
Voters pass the separation of powers amendments by a 78.32 percent majority.
January, 2005
The General Assembly begins work on legislation to implement the separation of powers amendments.
July 1, 2005
By session's end, some ten defunct boards have been repealed. Others have been amended. Many others, among them the most influential and powerful in the state, have not been touched.
April 1986
Then-Superior Court Judge Ronald Lagueux rules that legislative appointments to the Rhode Island Coastal Resource Management Council (CRMC) are unconstitutional. Eight of the Council’s 16 members are legislative appointees: two state representatives, two state senators, and four public members. The Speaker of the House appoints six of the eight. Three of the governor’s seven appointments to the CRMC require Senate confirmation.
The day after Lagueux's ruling, the Providence Journal calls on the constitutional convention then in progress to clarify "executive and legislative bounds" in the amendments it would recommend to the voters. Despite the Journal's recommendation, the convention, under tight control of House Speaker Matthew J. Smith, does not confront the issue of Separation of Powers.
March 10, 1987
The Rhode Island Supreme Court, all of whose members have been elected by the General Assembly meeting "in Grand Committee," reverses Judge Lagueux’s ruling. The high court rules that Lagueux improperly raised the question of the CRMC's constitutionality, and that the parties in the dispute had submitted to its jurisdiction.
December 31, 1990
The Rhode Island Share and Deposit Indemnity Corporation (RISDIC), a private insurer of 45 credit unions, declares it is insolvent.
January 1, 1991
Newly sworn in, Governor Bruce Sundlun closes the 45 credit unions formerly insured by RISDIC.
March 14, 1991
A special study commission impaneled by Governor Bruce Sundlun and headed by Brown University President Vartan Gregorian issues Carved in Sand, a report on the collapse of the Rhode Island Share and Deposit Indemnity Corporation.
Gregorian's report explains how oversight fails when legislators have conflicted interests:
"Contributory or compounding causes of the collapse of RISDIC included structural and operational weaknesses of the General Assembly, the Department of Business Regulation, and RISDIC itself. With friends of RISDIC in key positions in the General Assembly's leadership, legislators were unwilling and unable during the mid-1980s to heed various warning signals."
April 1992
Sheldon Whitehouse, then-Executive Counsel to Governor Bruce Sundlun, tells Common Cause of Rhode Island Executive Director Phil West that reformers "will not cut the deep root of Rhode Island's corruption" until they address separation of powers.
December 1992
The Select Commission to investigate the multi-million dollar failure of RISDIC-insured Financial Institutions issues its four-part report. Phase IV of the report is entitled "The Failure of Governmental Oversight."
July 1994
The Common Cause/RI State Governing Board adopts separation of powers as its highest priority. Attorney Robert Kilmarx heads the separation of powers Task Force, a responsibility he will carry until 1999, when Roger Williams University Law Professor Carl Bogus takes over. Each brings legal skill and personal passion to the mission of establishing separation of powers in Rhode Island.
August 1994
During a televised gubernatorial debate, Common Cause state Board Member Greta Abbott asks Republican candidates Lincoln Almond and Ron Machtley whether, if elected, they will work to establish separation of powers in Rhode Island. Both promise that they will.
1995 - 2001
Every year legislators introduce separation of powers bills at the request of Common Cause, but all the legislation is killed in House or Senate committees. Many scoff that it will never happen in Rhode Island. During these years, Common Cause calls public attention to what it calls "power grab bills," legislation seeking to extend the General Assembly's reach into executive agencies and quasi-public bodies by appointing board members who run them. Hearings on these bills provide opportunities for Common Cause to make the case for separation of powers by pointing to patronage hiring, insider contracts, unearned pension benefits and other abuses of power. Common Cause argues that such "power grab bills" would be unconstitutional in the Federal Government and in other states.
Many lawmakers react with angry indignation, but others quietly acknowledge that the problem of legislative appointments is out of control.
Over the years, community and grassroots organizations begin to affirm the need for separation of powers. Among the first to do so are the Environment Council of Rhode Island, the League of Women Voters, Operation Clean Government, Save the Bay and the Rhode Island State Council of Churches.
April 1995
The Rhode Island Bar Journal publishes "The Impetuous Vortex," an essay by United States Attorney Sheldon Whitehouse. Whitehouse draws his title and theme from James Madison's argument in Federalist Paper #48 that legislatures, unless rigorously prevented from doing so, will eventually seek to draw all government powers into their control. In that article and in a later one in the Roger Williams University Law Review, Whitehouse contends that the Rhode Island General Assembly has demonstrated the worst that Madison feared. The key, Whitehouse says, is the legislature's ability to gain influence and control of agencies by appointing members of the boards that run them.
June 1995
Governor Lincoln Almond vetoes legislation that would add two lawmakers to the seven-member Rabies Control Board. The House and Senate quickly override the veto. In this historic first veto for separation of powers, Almond signals his determination to address the issue.
November 15, 1995
The Providence Journal reports that State Senator John Orabona (D-Providence) has retired at the age of 52, claiming public pensions of $106,000 per year based on a total of 79 years worth of retirement credits.
Common Cause presses the Ethics Commission to investigate conflicts-of-interest involving Orabona's service both on the General Assembly's Joint Committee on Retirement that drafts retirement legislation and on the Retirement Board that administers pensions for retirees.
The Ethics Commission does nothing, but General Treasurer Nancy Mayer, a long-time critic of insider pension deals, moves to block Orabona’s state pension.
January 17, 1996
Directors of the Solid Waste Management Corporation (SWMC) fire Thomas E. Wright as Executive Director of the trash disposal agency. Wright reports pressure from state Rep. John McCauley (D-Providence) to hire a five-times convicted felon.
Common Cause asks Speaker John B. Harwood (D-Pawtucket) and Senate Majority Leader Paul S. Kelley (D-North Smithfield) to investigate charges that Wright's refusal to hire the felon is a factor in his dismissal. Neither Harwood nor Kelley replies to repeated inquiries on the matter.
January 28, 1997
By a vote of 61 to 36, the House of Representatives rejects Governor Almond's nomination of then Assistant United States Attorney Margaret E. Curran to fill a vacancy on the state Supreme Court. It later emerges that Curran is rejected because she would not promise House leaders that she would be "safe" in any separation of powers cases that might reach the high court.
Almond eventually picks Maureen McKenna Goldberg from a list provided by the Judicial Nominating Commission. She breezes through confirmation and proves a safe majority vote for the status quo.
May 1997
At the urging of Common Cause, the Rhode Island Ethics Commission concludes that it is an inherent conflict-of-interest for lawmakers to both write the laws and then serve on the boards that execute them. The panel's new regulation also outlaws legislative appointments to boards and commissions with executive powers.
Governor Lincoln Almond assures separation of powers advocates that he will ask the state Supreme Court to issue an advisory opinion as to whether the Ethics Commission has the constitutional power to ban legislative appointments to state boards. After careful preparation, Almond files the request in November 1997.
The Common Cause separation of powers Task Force initiates a 50 States Project, to analyze the role played by legislators and legislative appointees in quasi-public agencies across the country. Led by volunteer Peter Hufstader, the project documents how far Rhode Island practice has deviated from the practices of other states.
January 21, 1998
Rep. Christine Callahan (R-Middletown) publicly resigns her seats on the Lottery Commission and the Economic Development Corporation saying, "Our rightful role in the General Assembly is that of true legislative review and oversight, and not direct participation on commissions and boards that we create and fund in the first place."
March 1998
Common Cause files a brief in support of the Ethics Commission's ban on lawmakers' serving on boards and commissions that execute laws. The League of Women Voters, Rhode Island State Council of Churches and RedAlert all join the Common Cause brief. The Environment Council of Rhode Island and Operation Clean Government decide to file separate briefs supporting separation of powers.
April 26, 1999
The Rhode Island Lottery Commission votes 5-4 to allow the Lincoln Greyhound Park and Newport Jai Alai fronton to add 850 new video lottery slot machines to their operations. Six of nine members of the Lottery Commission are sitting state legislators. Daniel V. McKinnon, law partner of House Speaker John B. Harwood (D-Pawtucket) serves as counsel to the owners of the gaming facility.
May 7, 1999
Governor Almond petitions Superior Court to bar the Lottery Commission from acting on its recent vote because the membership of the state Lottery Commission violates the doctrine of separation of powers.
June 10, 1999
Superior Court Judge Michael A. Silverstein blocks the installation of 850 new video slot machines at Lincoln Greyhound Park and Newport Jai Alai. "The issue here," the judge says, "is whether what [the General Assembly] has done by requiring two-thirds of the commission be legislators infringes on the governor's constitutional obligations."
June 29, 1999
In response to Governor Almond's November 1997 request for an advisory opinion, the state Supreme Court rules, 4 to 1, that the Ethics Commission exceeded its authority in prohibiting legislators from sitting on boards and commissions. The ethics panel had also prohibited legislators from appointing others to boards.
From the majority opinion:
...article 6, section 10, of the 1986 Constitution specifically reaffirms the General Assembly's unfettered right and power to "continue to exercise the powers it has heretofore exercised, unless prohibited in this Constitution." (P. 11)
...legislative appointment of executive-type boards has been a long-standing practice in this state...as early as 1844...
Thus, Rhode Island's history is that of a quintessential system of parliamentary supremacy. (P. 15. Emphasis added) ... only the people of Rhode Island may change the structure of their government...
We suggest that the sole and proper procedure for restricting legislators from serving on or appointing "any other person" to executive boards and commissions is through an amendment to the constitution approved by the electorate, not by an ethics regulation. (P. 30)
In re: Advisory Opinion to the Governor (Rhode Island Ethics Commission -- separation of powers). Supreme Court No. 97-572-M.P.
Justice Robert Flanders issues a sharp dissent: "[The Supreme Court's] loss of legal vision risks plunging the people of this state into a long, dark age of subjugation to unchecked, unbalanced and unlimited governmental powers exercised by controlling members and subparts of the Legislature."
August 24, 1999
Edward Achorn, a new editor at the Providence Journal, publishes the first in a relentless series of columns that target Rhode Island's casual acceptance of political corruption and its dangerously unrepresentative form of state government. The remedy, Achorn will tell readers many times in coming years, is constitutional separation of powers.
October 27, 1999
Superior Court Judge Michael Silverstein rules that the makeup of the Rhode Island Lottery Commission is unconstitutional by virtue of its legislative members. The commission appeals this ruling to the Supreme Court.
July 27, 2000
By a vote of 3 to 1, the Supreme Court reverses Silverstein. The majority rules that nothing in the state constitution prohibits the legislature from appointing its members to boards and commissions, or from controlling those boards through legislative majorities. Indeed, the court rules that the legislature may exercise any authority it wants unless the state constitution expressly forbids it.
From the opinion:
...we perceive no basis for holding that the legislature may not provide by statute for the creation of a commission consisting of a majority of members appointed from both Houses of the General Assembly with or without including representation from gubernatorial appointees. (P. 12)
...the Rhode Island Legislature (unlike Congress) need not look to the state Constitution as a source of authority by virtue of its historical plenary power [Article VI section 10] preserved in both the 1843 and 1986 Constitutions. It may exercise any power unless prohibited in this Constitution. (P. 17. Emphasis added)
The Rhode Island Constitution does not prohibit the appointment of legislators to administrative boards and commissions. These boards...then may exercise all the powers that administrative agencies have traditionally exercised in both the federal and state systems of government. (P. 17)
Lincoln C. Almond, in his capacity as Governor of the State of Rhode Island et al. v. The Rhode Island Lottery Commission, Newport Grand Jai Alai, LLC, and Burrillville Racing Association, d.b.a. Lincoln Greyhound Park et al. Supreme Court No. 99-525-Appeal. (PV 99-2323)
August 2000
Governor Almond places a non-binding question on the November ballot. Ballot Question 6 reads:
Should a Constitutional Convention be called to expressly establish that Rhode Island government consists of separate and co-equal legislative, executive, and judicial branches similar to the governments established by the United States Constitution and the Constitutions of all 49 other states?
A coalition of reform groups mounts a grassroots campaign, urging the Rhode Islanders to vote YES on Question 6.
Leaders in the effort include Common Cause, the Environment Council, the League of Women Voters, Operation Clean Government, RedAlert, and the Rhode Island State Council of Churches.
September 15, 2000
Common Cause of Rhode Island publishes Democracy Betrayed; Conflicts of Interest and Failures of Oversight in Rhode Island State Government. The white paper summarizes scandals that have arisen because state law empowers lawmakers to exercise executive powers. Chapters focus on the State Retirement System, the Narragansett Bay Commission, the Coastal Resources Management Council, the Lottery Commission, the Resource Recovery Corporation, and the Unclassified Pay Plan Board.
November 7, 2000
Voters approve Question 6 in a statewide vote of 218,139 to 111,292 (66.2% to 33.8%). Among 39 cities and towns in Rhode Island, only West Warwick (at 59.4%) passes the measure by less than sixty per cent.
February 8, 2001
Rep. Nicholas Gorham (R-Coventry) introduces legislation (01-H 6022) to establish a commission to begin work on a Constitutional Convention focused on separation of powers, as urged by voters in their approval of Question 6. The bill is assigned to the House Judiciary Committee, which ignores it.
June 28, 2001
On the last day of the legislative session, after frustrating attempts to get a hearing and vote on his bill, Gorham invokes a House rule to force debate and a floor vote. House leaders kill the bill by a vote of 58 to 25. Thirteen Democrats and twelve Republicans cast the first recorded votes in either chamber in favor of separation of powers.
Fall 2001
The Common Cause separation of powers Task Force organizes a grassroots network across Rhode Island to increase pressure in the 2002 legislative session. Prominent in communications to concerned citizens is the voting record of House members who killed Gorham's separation of powers resolution on the last night of the session.
January 29, 2002
Hundreds of citizens pack the State Room for a Common Cause press conference in support of newly-introduced separation of powers legislation. Those who join the call include Governor Almond, all the candidates for governor, a bipartisan group of Senators and Representatives, and leaders of many community organizations.
Four House and three Senate separation of powers bills are introduced, by far the largest number in any legislative session since the modern separation of powers movement began in 1994. Most of these bills propose placing an amendment on the ballot in the 2002 general election.
March 26, 2002
A separation of powers bill by Rep. Nicholas Gorham (02-H 7050) gets a hearing in the House Judiciary Committee. When the bill is announced, Chairman Robert Flaherty (D-Warwick) and most committee members leave the room. With only five Judiciary Committee members present, more than twenty witnesses testify in support of Gorham's legislation. No one testifies against it.
Common Cause rallies members in the districts of Judiciary Committee members. A week later, with members of the Judiciary Committee absent, members vote "non-passage" by a narrow margin of 10-8.
April 10, 2002
Speaker John B. Harwood places Rep. Gorham’s proposed constitutional amendment on the House calendar. Again, as they had on June 28, 2001, House leaders move to kill the bill. This time, however, the Speaker’s margin drops to 11, with 49 votes to recommit and 38 votes for a full debate and a public vote.
Harwood’s parliamentary victory proves a public relations disaster. Talk shows and political columns pound House leaders.
May 29, 2002
After a four-hour hearing, the Senate Committee on Special Legislation votes overwhelmingly to send two separation of powers bills to the full Senate with a recommendation of passage.
May 30, 2002
The Rhode Island Senate passes two separation of powers amendments: 02-S 2288SubA by Sen. Michael Lenihan (D-East Greenwich) and 02-S 2440 by Sen. Dennis Algiere (R-Westerly). The vote is 40 to 6 for each bill. Both are assigned to the House Judiciary Committee, where they die without a hearing or vote.
June 2002
Rep. Nicholas Gorham collects signatures on a “discharge petition” to bring his bill back onto the House floor for a full debate. Forces loyal to Speaker John Harwood make an all-out effort to prevent representatives from signing the petition. By the last day of the session, Gorham has collected 38 signatures on the discharge petition, two short of the required 40.
Reps Elizabeth M. Dennigan (D-E. Providence) and Thomas A. Palangio (D-Providence) charge that funds for neighborhood groups that serve the handicapped were cut to punish their advocacy of separation of powers and other reforms. A third representative, Rep. David A. Caprio (D-Narragansett) charges that House leaders have punished him for supporting separation of powers. He says the Speaker has sacked his district committee and appointed substitutes who then promptly endorsed a primary challenger.
Common Cause files a public records request for data about legislative grants. After a month without reply, Executive Director H. Philip West, Jr., files a public records complaint with the Attorney General. When partial records are released, analysis shows that recipients of the largest grants have poor records of voting for reforms, particularly separation of powers. Meanwhile, those with the strongest reform voting records receive the smallest legislative grants.
July 2002
The Rhode Island Separation of Powers Committee (RISOP) forms to publicize the positions of legislators on separation of powers. Former Congressman and Bryant College President Ron Machtley and Hasbro CEO Alan Hassenfeld serve as Co-Chairpersons. Operation Clean Government founder Bruce Lang becomes RISOP President, with Vice Presidents Carl Bogus, Burt Hoffman and Bob Cox, all members of the Common Cause SOP Task Force. RISOP asks all candidates for election and re-election whether they will support or oppose separation of powers reforms. Candidates are informed that the results will be communicated to the voters, including failures to respond.
Common Cause assists in framing another ballot question that Gov. Lincoln Almond places on the November ballot:
Should the Rhode Island Constitution be changed to eliminate Article VI, Section 10, which preserves to the General Assembly today broad powers granted to it by King Charles II of England in 1663 and also be changed to expressly provide that the legislative, executive, and judicial branches of Rhode Island government are to be separate and co-equal consistent with the American system of government?
A broad coalition mounts a grassroots campaign to secure approval of Question 5. Eleven groups mobilizing their members in the effort: American Association of University Women, Chambers of Commerce (Greater Providence, Hispanic-American, Northern Rhode Island), Common Cause, the Environment Council, the League of Women Voters, Operation Clean Government, RISOP, Save the Bay, and the Rhode Island State Council of Churches.
August 15, 2002
WHJJ talk show host John DePetro reports that a former House employee named Wendy Collins has received $75,000 from the state, apparently for dropping a sexual harassment charge from a Workers’ Compensation claim. This disclosure begins a steady erosion of Speaker Harwood’s control of the House.
September 6, 2002
RISOP publishes the first of a series of large ads in the Providence Journal listing House and Senate candidates’ positions on separation of powers. Some formerly die-hard opponents have signed statements that they will vote for separation of powers reforms if elected. Others continue to oppose reforms.
September 10, 2002
Although voter turnout is poor, House candidates supported by Speaker Harwood win by narrow margins or are defeated in the Democratic primary. Supporters of separation of powers are victors.
September 2002
In the face of widespread demands that he resign as Speaker, John B. Harwood calls the first public meeting of the Joint Committee on Legislative Services. Democratic Representatives begin announcing they will not support Harwood for re-election as Speaker.
October 9, 2002
Bruce Bayuk, a resident of the Speaker’s Pawtucket district and separation of powers supporter, announces that he will run as a write-in candidate for the House seat.
November 5, 2002
Republican Donald Carcieri is elected governor. In General Assembly races, several separation of powers opponents lose; others win by narrow margins. Speaker Harwood barely squeaks by write-in challenger Bruce Bayuk amid evidence of voting irregularities and charges of voting fraud. After investigations and recounts by the Board of Elections, Harwood remains the victor. Rhode Island voters approve Question 5 on separation of powers by a statewide vote of 223,151 to 69,748 (76.2% to 23.8%). Tiverton (at 69.6%) is the only municipality to approve the question by less than seventy per cent.
November 7, 2002
House Democrats elect Rep. William J. Murphy (D-West Warwick) as Speaker and Rep. Gordon D. Fox (D-Providence) as House Majority Leader.
November 14, 2002
At the invitation of Common Cause, a bipartisan group gathers in the office of Attorney General Sheldon Whitehouse, a Democrat, to draft a possible constitutional amendment. Present are Whitehouse, Rep. Nicholas Gorham (R-Coventry), Sen. J. Michael Lenihan (D-East Greenwich), Jeffrey Lanphear (representing Senate Minority Leader Dennis Algiere), Jeffrey Grybowski (representing Governor-elect Donald Carcieri), Roger Williams University Law School Professor Carl Bogus, and Common Cause state director H. Philip West, Jr. Sen. Mary A. Parella (R-Bristol) was not able to attend because of a scheduling conflict.
The group drafts a sparsely worded amendment whose essential elements include: (1) a ban on dual office-holding, (2) a strong executive appointments clause, (3) a declaration that the legislative, executive and judicial branches shall be “separate and co-equal,” and (4) removal of the broad powers clause (Article VI, Section 10) that the Supreme Court has twice used to say the state has legislative supremacy.
December 11, 2002
Leaders from a broad range of civic, business, environmental, reform and ecumenical groups gather at the First Unitarian Church in Providence for a briefing on the bipartisan SOP draft. Members of the bipartisan SOP drafting committee explain their proposal and urge those present to seek public support from their boards.
January 4, 2003
Common Cause learns that the 3rd District Court of Appeals in Sacramento has ruled that the California Coastal Commission violates the state constitution’s separation of powers provisions. A majority of the commission’s members are appointed by the legislature.
January 7, 2003
Donald L. Carcieri is inaugurated as governor. From his inaugural address: “We must enact a constitutional amendment that clearly separates the power between the executive and legislative branches . . . This is not a condemnation of the members of the General Assembly – only of the system – one that is ill-serving us.”
The House formally elects Rep. William J. Murphy as Speaker to replace the disgraced John B. Harwood. Murphy files a resolution (03-H 5003) asking the House Rules Committee to create a standing Committee on separation of powers. He says some see separation of powers “as an antidote to the lopsided power the legislature has in Rhode Island.”
Bipartisan House and Senate separation of powers bills are filed in the House by Rep. Nicholas Gorham, (R-Coventry) and in the Senate by Sen. J. Michael Lenihan (D-East Greenwich). Both previously sponsored separation of powers legislation that was crushed by forces loyal to then-House Speaker John B. Harwood. Thirty-five of 38 senators, including Senate President William V. Irons (D-East Providence), Senate Majority Leader Joseph A. Montalbano (D-North Providence) and Senate Minority Leader Dennis L. Algiere (R-Westerly), cosponsor Lenihan’s legislation (03-S 0180); 38 of 75 representatives (11 Republicans, 26 Democrats and one Independent) cosponsor Gorham’s legislation (03-H 5081).
Two weeks later, Rep. Fausto C. Anguilla (D-Bristol) files a bill (03-H 5360) that differs sharply from Gorham’s. Forty-three Democrats sign on as backers of the Anguilla bill. Of the 43 co-sponsors, 29 had voted with House leaders against Gorham’s separation of powers bill on June 28, 2001, and 21 voted the same way on April 10, 2002.
March 10, 2003
The Senate Committee on Governmental Oversight chaired by Sen J. Michael Lenihan holds the first hearing on his and Sen. Connors’ separation of powers bills. Common Cause Executive Director H. Philip West, Jr., and Research Director Peter Hufstader present the committee with copies of Common Cause’s Separation of Powers Reference Manual. The manual contains salient information on Rhode Island Boards and commissions and on relevant constitutional provisions in Rhode Island and the other states.
March 12, 2003
The newly-created House Separation of Powers Committee holds its first hearing on the Gorham and Anguilla bills. After West and Hufstader present copies of the reference manual, Gorham and Anguilla testify on their own bills and answer questions posed by committee members. It quickly becomes apparent that a majority of the committee favors the Anguilla bill.
March 17, 2003
The Lenihan committee holds its second and last hearing on the Lenihan separation of powers bill. At the conclusion of the hearing, the committee unanimously recommends passage of the bill, which is placed on the Senate calendar three days later.
March 19, 2003
Rep. Gorham and three expert witnesses testify on the Gorham bill. The experts are all from Rhode Island: Carl Bogus, professor of law at Roger Williams University; Ross Cheit, professor of political science at Brown University; and James Marusak, an attorney and student of Rhode Island history. Cheit’s testimony is informed by his authorship of the Gregorian Report on the 1991 banking crisis which closed 45 credit unions and financial institutions supposedly insured by the insolvent Rhode Island Share and Deposit Indemnity Corporation (RISDIC).
March 26, 2003
The Senate passes the Lenihan separation of powers bill 36-0. The same day the House Separation of Powers Committee’s hearing is devoted to the Anguilla separation of powers bill, H 5361. After hearing Rep. Anguilla’s testimony and responses to committee questions, the committee hears from Maureen Moakley, professor of political science at the University of Rhode Island.
April 2, 2003
Three experts from Rutgers University in New Jersey testify in favor of the Anguilla separation of powers legislation. The three have been flown in and accommodated at House expense. Their testimony, as has been the case in all previous House Separation of Powers Committee hearings, is followed by testimony from the general public, which has been overwhelmingly in favor of the Gorham bill over the Anguilla bill.
April 9, 2003
More expert testimony is heard against the Gorham bill. The only expert witness who testifies this evening is a former professor of history at Providence College Patrick T. Conley, the author of Democracy in Decline, a study of the history of Rhode Island’s first constitution as well as other scholarly books and pamphlets.
April 18, 2003
Bruce Lang, President of the RISOP announces that the coalition of state-wide groups supporting the Gorham-Lenihan bill has grown to 32. The list represents a broad spectrum of Rhode Island’s public organizations: American Association of University Women, Aquidneck Island Clergy Association, Central Rhode Island Chamber of Commerce, Citizens Concerned about Casino Gambling, Coalition for Consumer Justice, Common Cause Rhode Island, Conservation Law Foundation, Cranston Chamber of Commerce, East Greenwich Chamber of Commerce, Energy Council of Rhode Island, Environment Council of Rhode Island, Environmental Committee of the Diocese of Providence, Greater Providence Chamber of Commerce, Hispanic-American Chamber of Commerce, Jamestown Town Council, Kay Coalition Against Casino Gambling, League of Women Voters, Manufacturing Summit, Newport City Council, Newport County Chamber of Commerce, Northern Rhode Island Chamber of Commerce, Operation Clean Government., Portsmouth Concerned Citizens, Priests for Justice (Diocese of Providence), Rhode Island Public Interest Research Group, Rhode Island Separation of Powers Committee (RISOP), Rhode Island State Council of Churches, Rhode Island United Methodist Association, Save The Bay, Sierra Club Rhode Island, Unitarian-Universalist Churches, Urban League of Rhode Island.
April 24, 2003
Phil West e-mails representatives of the Separation of Powers coalition, “Speaker Murphy promised me today with a handshake that he will give us [the House leadership’s substitute] bill text by 3 PM Monday. He emphasized that this may not be a final SubA, but few of us doubt it will be much closer to the Gorham bill … than to the Anguilla bill … “ Back-to-back meetings of the bipartisan drafting committee and the Separation of Powers coalition are scheduled for the following Monday.
April 28, 2003
The coalition meets at the First Baptist Church in America with approximately thirty representatives representing eleven organizations. Common Cause President James C. Miller, the Senior Minister at First Baptist, leads a discussion that reaches consensus on several points:
- Disappointment that the House leadership has not yet provided any substitute text for public discussion;
- Strong support of the bipartisan Lenihan-Gorham resolution;
- Mutual commitment not to enter into separate discussions or negotiations with the House leadership;
- Agreement that this historic moment demands political agreement among the House, the Senate and the Governor.
House leaders, both Republicans and Democrats, inform Common Cause that they have reached agreement on a new text of the Gorham bill and that they will announce it at a press conference. The amended version of the bipartisan Gorham bill (03-H 5081SubA) uses “separate and distinct” in Article V in place of “separate and co-equal,” and it deletes the broad powers clause (Article VI, Section 10) entirely. It amends Article VI section 2 by adding four words to a provision that is remarkably like comparable provisions in 44 other state constitutions. The amended section would read as follows:
Section 2. Power vested in general Assembly – Concurrence of houses required to enact laws – style of laws. The full legislative power, under this Constitution, shall be vested in and exercised by two houses, the one to be called the senate, the other the house of representatives; and both together the general assembly. The concurrence of the two houses shall be necessary to the enactment of laws. The style of their laws shall be, It is enacted by the general assembly as follows: …
After a round of State House meetings, Speaker William J. Murphy says he will allay concerns raised by Common Cause that this language could open the door to legislative control of rule-making of administrative agencies. Murphy promises to state that intention in a press conference on May 15.
May 15, 2002
House Speaker William Murphy, House Majority Leader Gordon Fox hold a press conference attended by members of the House Separation of Powers Committee and representatives of the reform community to announce the amended Gorham bill. The leaders also tell those attending that Rep. Fausto Anguilla has graciously agreed to withdraw his bill.
In his opening remarks, Speaker Murphy reminds his audience that the unveiling of the revised Gorham bill is the fulfillment of a promise he and his leadership team had made at the beginning of the 2003 legislative session: that the House would pass a separation of powers bill during the session.
“This exercise has proven that the deliberative legislative process works,” Murphy ended. “I’m proud that we were able to bring all the parties together – after much debate – and reach an agreement on what we believe will be the best bill for the people of Rhode Island.”
Aware of the widespread concern over the language added to VI-2, Speaker Murphy tells those attending the press conference, “I can stand here and say with this new language, it is not the intent of the House of Representatives in any way to undermine the administrative [rules] process …” (Providence Journal, May 16, 2003)
Majority Leader Gordon S. Fox speaks in a similar vein. “I am proud that in the four short months since our new leadership team began, we have addressed the issue, we have analyzed it, and we reached consensus. In a few short days, Separation of Powers will be brought to the Floor of the House for the first time. … I am proud to stand with Speaker Murphy as a part of a new leadership team … “
May 19, 2003
Members of state-wide Separation of Powers Coalition gather at the First Baptist Church in America to discuss the coalition’s stance on the revised 5081. Among those present: Senator J. Michael Lenihan, D-E. Greenwich, sponsor of the separation of powers bill passed by the Senate in April; Rep. Nicholas Gorham, R-Coventry, sponsor of H 5081; Bruce Lang of the Rhode Island Separation of Powers Committee; H. Philip West, executive director of Common Cause/RI; the Reverend James Miller, president of Common Cause/RI; and Sheldon Whitehouse, former attorney general and considered by many "the father" of the separation of powers movement. Also in attendance is Providence Journal Staff Writer Liz Anderson, a member of the Journal’s State House staff.
It becomes quickly clear that the meeting is divided between two opposing points of view: to agree to the amended bill as written; or to remain loyal to the original Gorham bill, which contained the phrase "separate and co-equal" in Article V and left Article VI-2 intact.
Among those urging compromises are, not surprisingly, the bill's primary sponsor, Rep. Gorham, who tells the gathering of some 40 people that he sees no difference whatever between "Legislative power," "The legislative power," or "Full legislative power." "They are indistinguishable from each other," Gorham tells his listeners.
With respect to fears about a legislative takeover of executive agencies' rule-making authority, Gorham avers that the delegation of rule-making power has also been and would remain a part of "legislative powers," as is the ability to enact statutes that alter or abolished individual agency rules. Nothing would change under the rewritten 5081.
Sheldon Whitehouse advocates asking the House Separation of Powers Committee to make a formal statement, to be read into the House record, that it has no intention of arrogating to itself the rule-making authority of executive agencies.
Attorney Kevin McAllister, a member of the Common Cause Board of Governors, says that the proposed additions to VI-2 make him "queasy," and when that language is conjoined with the replacement of "separate and co-equal" with "separate and distinct," his queasiness becomes more intense. Others echo the spirit if not the substance of McAllister’s words.
After two hours of discussion, the meeting approves a statement affirming the coalition's support of the original Gorham bill and praising the House for coming so far in approving a bill that contained so much of what the reform community had sought since 1994.
May 20, 2003
The House Separation of Powers Committee convenes at approximately 5 PM in Room 35 of the State House. The first witnesses to testify are H. Philip West, Jr., executive director of Common Cause/RI, and Carl T. Bogus, professor of law at Roger Williams University and chairman of the Common Cause Separation of Powers Task Force. West gives the committee copies of a Common Cause study of state constitutions that show that no other state uses the language that has been proposed to be added to Article VI-2 of the Rhode Island Constitution. In fact, the present VI-2 is virtually identical to the language in comparable provisions of 44 other state constitutions. "Why add language that is found in no other state constitution?" West asks the committee rhetorically. "What is your intent?"
Prof. Bogus tells the committee, "As sure as I am sitting here, those added words are going to be the focal point of some future court action. We don't know when; we don't know what the particular cause will be; and we don't know who the advocates will be. But it will happen."
Other witnesses repeat the concerns that sprung up with the unveiling of the revised 5081: that the four words added to VI-2 were a veiled attempt by the House to control executive agencies' rule-making.
In what all agree is an extraordinary step, the House Separation of Powers Committee agrees to issue an official report stating that that is not the intent of the revised VI-2.
The committee then votes to recommend passage of 03-H 5081 Substitute A. The vote is unanimous.
It is the first time that a House committee has ever recommended passage of a bill limiting the Assembly's powers and broadening the governor's. The bill is then placed on the House floor calendar for May 22.
May 21, 2003
Speaker Murphy places 03-H 5081SubA at the head of the House floor calendar. Representative Elaine Coderre, (D-Pawtucket) and chair of the House Separation of Powers Committee, moves passage. Her motion is seconded by almost all of the representatives in the chamber.
The speaker then recognizes a series of representatives who speak on the bill. First is Rep. Fausto Anguilla, who had sponsored a rival separation of powers bill at the speaker's request, a bill which he had withdrawn also at the speaker's request, apparently after the leadership had decided to focus its efforts on the Gorham bill rather than his. Anguilla spoke of his satisfaction with a deliberative process that served the people's interests.
Others are less sanguine about the vote the chamber is about to cast. Representative Thomas Slater, (D-Providence) speaks angrily about the pressure he received from reform groups about separation of powers during the 2002 election campaign and described the vote he is about to cast as a "reluctant yes." He blames reform groups for past changes, including the down-sized General Assembly.
Rep. Paul Crowley, (D-Newport) and vice chair of the House Separation of Powers Committee, (Crowley was very nearly defeated in the 2002 campaign by a 19-year-old challenger over the issue of separation of powers) speaks to the challenges that would face an under-funded, under-paid, under-staffed citizen legislature in providing oversight of the executive branch.
Rep. Robert Lowe, (D-Smithfield), who served for some years as one of three legislative members of the Rhode Island Resource Recovery Corporation, warns reformers to be careful what you ask for: you might get it. Lowe is repeating an oft-heard caution by opponents of separation of powers reforms that un-imagined dangers lurk within the Doctrine of Separation of Powers, in force everywhere in the United States but Rhode Island since 1788.
Rep. Susan Story, (R-Barrington) and a member of the House Separation of Powers Committee, asks the speaker to have the committee's statement disavowing any intention to meddle with executive rule-making read into the record. It is so ordered and so done.
Rep. Paul Moura, (D-Providence) a long-time foe of separation of powers reforms until the 2002 fall from grace of his patron, former House Speaker John B. Harwood, also speaks in support of 5081 as amended. Moura's increasingly passionate remarks contain a veiled reference if not a threat to "someone on the other side of the rotunda," a possible allusion to Senate President William V. Irons, (D-Pawtucket.)
Rep. Nicholas Gorham, (R-Coventry) and sponsor of 03-H 5081aa, thanks his constituents for voting him back into office. He is clearly elated at the final success of his three-year battle to bring a separation of powers bill to the House floor.
House Majority Leader Gordon Fox is the last to speak. His discursive, emotional speech refers repeatedly to the pride the House should feel in the accomplishments of its Separation of Powers Committee and in the vote the House is about to cast.
And then the speaker calls for the vote. At that point, Murphy's predecessor in the speaker's chair, Rep. John B. Harwood, (D-Pawtucket) leaves the House floor. He did not vote on the measure. Harwood became speaker in 1993. His opposition to separation of powers had doomed all previous attempts to place separation of powers amendments before the voters.
"Shall H 5081 as amended pass? All those in favor, press the green button." The vote is 71-1 for passage. The lone negative is cast by Rep Joseph Faria, (D-Central Falls.) In addition to Harwood, who is present but left the chamber before the vote, Rep. Peter Kilmartin, (D-Pawtucket) is absent. One House seat is recently vacated by the death of Rep Stephen Anderson, (D-Coventry.)
May 21 – June 4, 2003
An intense dialogue ensues via e-mail and phone calls across the state among proponents of separation of powers as to how to react to the five-word difference between the House and the Senate: stand firm in support of the original Gorham-Lenihan bill, or accept some compromise version?
May 27, 2003
The House transmits the Gorham bill, as amended, to the Senate, where it is assigned to the Senate Committee on Government Oversight. On June 2,at 8:39 AM, the Senate Committee on Government Oversight posts a hearing for June 4 on a number of bills of interest to Common Cause. One of them is 03-H 5081aa, the revised Gorham bill on separation of powers passed by the House.
June 4, 2003
At approximately 5:10 PM. Sen. J. Michael Lenihan convenes the hearing of the Senate Committee on Government Oversight. After disposing of other bills on the agenda, Sen. Lenihan calls witnesses to testify on 03-H 5081aa. Among those who speak: Rep. Gorham, the bill’s principal sponsor; former Attorney General Sheldon Whitehouse; H. Philip West, executive director of Common Cause/RI; Carl T. Bogus, professor of law at Roger Williams University; Robert Arruda, president of Operation Clean Government; Bruce Lang, president of the Rhode Island Separation of Powers Committee (RISOP); and Christopher Hamblett of Save the Bay and the Rhode Island Environmental Council. No witnesses testify against the Gorham bill.
Common Cause's Phil West praises the Senate and House for conducting the debate on separation of powers in a civil manner, in contrast to past constitutional upheavals which took place in an aura of violence or conflict.
Sheldon Whitehouse calls "separate and distinct" acceptable, "workmanlike" language which appears in other state constitutions. He also testifies that the history of this period in Rhode Island will make it clear that the repeal of Article VI section 10 did nothing more than roll the legislature’s powers back inside the boundary between the legislative and executive branches. With respect to "and exercised by," however, Whitehouse testifies that he feels "queasy." The phrase could be interpreted, Whitehouse testifies, to bar the legislature from delegating to administrative agencies the power to establish rules and enforce them, as is now universally done.
Save the Bay's Hamblett has heard a number of lawyers give diametrically opposite accounts of what "full … and exercised by" mean. "If there is this much disagreement," Hamblett testifies, "that's a good reason not to add those four words."
At the conclusion of the meeting, Sen. Lenihan announces that the committee will meet the following Wednesday and promises that it would send to the full Senate a "strong" separation of powers bill. He is warmly applauded.
June 11, 2003
Sen. Lenihan convenes the promised hearing of the Committee on Governmental Oversight at about 5:35 PM. The members of the committee are joined by Sen. President Irons and Majority Leader Montalbano.
Lenihan explains to the live and television audiences that negotiations with House leaders over the controversial four words have been fruitless. The committee, therefore, intends to amend the Gorham bill so that it is identical to a new bill (S 1140) he introduced earlier in the day. 03-S 1140 is identical to the Gorham bill save in one important aspect: where the Gorham bill adds the four controversial words to Article IX section 2, the Lenihan bill omits VI-2. When the Gorham bill has been amended to remove the four crucial words and to correct out some typographical errors, the committee will vote to send both bills to the Senate floor with a recommendation of passage.
After the motions to amend the Gorham bill have been made and seconded, Lenihan calls witnesses to testify. All thank the committee for bringing the campaign for separation of powers so far. All support the proposed compromise, as do Irons and Montalbano when they too speak.
The committee then votes unanimously to send both S 1140 and H 5081aa to the Senate with a recommendation of passage. Irons and Montalbano also cast "aye" votes.
June 12, 2003
In the morning both 03-S 1140 and 03-H 5081aa are posted on the Senate's Floor calendar for that day. When the session convenes, the full Senate unanimously approves the amendments Sen. Lenihan proposes to 03-H 5081aa as well as some minor changes to 03-S 1140. There is no discussion. Then the Senate unanimously approves both bills as amended. The vote is 36-0 on both bills, which are immediately transmitted to the House, where they are assigned to the Committee on Separation of Powers and essentially vanish from public view.
From that point forward, there is no activity on either bill in the House. No hearings on the bills are posted. No public statements are made by the House leadership about either bill.
June 15, 2003
The separation of powers bills are not forgotten, however. On this date the Providence Journal publishes a commentary essay on separation of powers by John Hazen White Jr., president of Taco and a member of the Manufacturing Summit, one of 33 organizations that publicly endorsed the Lenihan-Gorham legislation (White is also the son of John Hazen White, a long-time supporter of separation of powers who died in 2002). White's essay, entitled "Beware SOP hanky-panky," warns the public that the House leadership may be trying to stall on separation of powers until the session is over. It may be the first or one of a very few printed statements supporting separation of powers reforms by a member of the Rhode Island business-manufacturing community. On the same day the Journal publishes an editorial entitled "Last-minute conniving" which echoes White's warning.
June 17 - 27, 2003
Providence Journal deputy editor Edward Achorn was a supporter of separation of powers reforms almost from the moment he first entered his fourth-floor office. On June 17, in a column entitled "Fairness put to the test in Rhode Island," Achorn warned his readers, "As I write this, House leaders are threatening to kill the whole [SOP] reform rather than compromise on one word: "full," appended to "legislative power." Why they insist that 'full' be used in describing legislative power — but not executive or judicial power — is anyone's guess."
One week later, in a column entitled "Legislators' contempt for citizens," Achorn discusses what appear to be attempts by disgraced former Speaker John B. Harwood, a long-time and inveterate foe of separation of powers reforms, to regain power. Indeed, Achorn wonders if Harwood is not actually "calling the shots" already in the State House. In the last two paragraphs, Achorn repeats his warning: "House leaders are balking at getting separation of powers through the General Assembly because of one word: 'full'." "Achorn concludes, "If they fail to get reform done in this session, and an amendment safely placed on the 2004 ballot, that will be more than business as usual. It will be an open declaration of war on the voters of Rhode Island. As much as the Ocean State voters are willing to let the General Assembly abuse them, it is hard to imagine their refusing to fight back on that one." (Original emphasis).
On June 26, the Journal publishes a commentary essay by H. Philip West, Jr., executive director of Common Cause/RI. Its title: "Four-letter word threatens reform." The four-letter word is, of course, "full." After rehearsing the reasons to remove it and its companion additions, "and exercised by," from the reform legislation, West concludes, "Now is the time for those who want genuine separation of powers in Rhode Island to urge their representatives to pass the Lenihan-Gorham amendment as it has been modified by the Senate. No need for 'full.' No more changes."
And on Friday, June 27, the Providence Journal runs an article by staff writer Liz Anderson headlined "Separation of powers agreement in words." Anderson focuses on a reported "compromise on language for a separation-of-powers constitutional amendment" which House Speaker William Murphy reportedly told Anderson would be voted on the following Monday, June 30. While details of the compromise have still not been released, it appears that the House is ready to give up "full … and exercised by" in return for a preamble to the bill "intended to protect their [the legislature's] legitimate legislative work."
The House apparently made the offer of this trade-off "in private" on Tuesday, June 24. According to Sen. President William V. Irons, (D-Pawtucket) the preamble would be "just a parenthetical statement about what was intended – it’s not law, it is not going to be in the Constitution." As of June 26, however, the wording of this preamble had not been made public, nor had Irons or Sen. J. Michael Lenihan, (D-East Greenwich) seen it. "I want to see something on paper," Lenihan reportedly told Anderson.
June 30, 2003
The amended SOP bills appear. The House has added some "whereas" clauses at the beginning of the legislation but has left the constitutional amendments, as modified by the Senate, intact. That means "separate and distinct" branches of government in Article V; the repeal of Article VI section X; the removal of "full … and exercised by" which the House had added to Article VI section 2; and the gubernatorial appointments clauses in Article IX.
Common Cause attorneys Alan Flink and Kevin McAllister approve the language of the "whereas" clauses. The bill reportedly will be the first item of business when the House convenes this afternoon.
June 30, 2003
Both houses of the General Assembly unanimously pass the bill containing the package of separation of powers amendments to the Rhode Island Constitution. Passage means the amendments will appear on the ballot in November, 2004 as Question 1.
June, 2004
The Senate passes bills amending the composition of boards and commissions to comply with the separation of powers amendments when they pass, as expected, in November. The bills are assigned to the House Committee on Separation of Powers, where they die.
November 2, 2004
Voters pass the separation of powers amendments by a 78.32 percent majority.
January, 2005
The General Assembly begins work on legislation to implement the separation of powers amendments.
July 1, 2005
By session's end, some ten defunct boards have been repealed. Others have been amended. Many others, among them the most influential and powerful in the state, have not been touched.