Updated, 2:38 p.m., 6/3/21 with correction
Dozens of bills aimed at boosting ethics, transparency and financial disclosure laws have been introduced in the Legislature this year from both parties, with lawmakers making the case that their respective bills would give Michiganders the most access to state government.
Transparency has been a hot topic in Michigan during the pandemic and the 2020 election, but the latter was disrupted by right-wing conspiracy theories of election fraud.
“We’re at a time where people are fairly hungry for information,” said Steve Delie, who is the lead on open government for the Mackinac Center for Public Policy, a free-market Midland-based think tank, and volunteer executive director for the Michigan Coalition for Open Government.
But Delie says there is currently “a culture of non-transparency.”
Republicans, Democrats and transparency advocates all agree that reforms in the state are necessary. Michigan scored an “F” in the last Center for Public Integrity’s State Integrity Investigation in 2015 and ranked worst in the country for state government accountability and transparency.
But it can be challenging to navigate all the proposals reforming conflicts of interest, the Freedom of Information Act (FOIA) and lobbying. And some open government advocates say that not all of these bills pass the smell test, either, because they lack accountability measures or are monitored by in-house committees rather than giving the public full access.
Here’s a roundup of what’s in the different proposals:
Financial disclosure bills
A bipartisan bill package was introduced earlier this year in the House, House Bills 4062, 4090, 4323, 4344 and 4612–4615, which would require state senators, representatives, candidates and members of Michigan State University, Wayne State University and University of Michigan governing boards to file financial reports.
The financial reports would include salaries over $5,000, stocks of $10,000 or more, annuities of $10,000 or more and properties, excluding primary residences, valued at $50,000 or more.
The eight bills in the package were sponsored by Republican Reps. Graham Filler (R-Dewitt), Mark Huizenga (R-Walker), Julie Calley (R-Portland) and Steve Marino (R-Harrison Twp.) and Democratic Reps. Bill Sowerby (D-Clinton Twp.), Yousef Rabhi (D-Ann Arbor), Tenisha Yancey (D-Harper Woods) and David LaGrand (D-Grand Rapids).
But as those bipartisan bills sit idly in committee, a new bipartisan package of financial disclosure bills was introduced in April and taken up in the House Elections and Ethics Committee.
HB 4680–4686 were introduced by state Reps. Andrew Fink (R-Adams Twp.), Joseph Tate (D-Detroit), John Roth (R-Traverse City), Timothy Beson (R-Bay City), Kyra Harris Bolden (D-Southfield), Mark Tisdel (R-Rochester Hills) and Nate Shannon (D-Sterling Heights).
This second package mirrors the same filing requirements as the first, but includes one main difference: Who has access to the information.
The financial disclosure reports would be submitted to an ethics oversight committee, which would not be subject to the Open Meetings Act (OMA) or FOIA, and information would only be made available to the public if the committee finds a violation of the conflict-of-interest regulations.
LaGrand, who has championed the broader first package for the last two terms, was critical of the new bills for leaving the public out.
“When you say financial disclosure, the question is which is the most important word? If disclosure is the important word, then this package that’s being pushed through committee right now does nothing because it doesn’t actually disclose,” LaGrand said. “In fact it does the opposite … it gives a few people access to the financial information of everybody in Lansing, which sets up a blackmail potential. So rather than letting the court of public opinion decide things, rather than having good conversations with the press and the people about what people’s financial interests are, we’re left with a secret committee.”
The liberal advocacy group Progress Michigan launched the Coalition to Close Lansing Loopholes ballot initiative last year, which would bar the immediate lawmaker-to-lobbyist transition. But when COVID-19 made it difficult to gather petition signatures for safety reasons, the ballot initiative folded.
The initiative would have included banning all gifts from lobbyists to lawmakers, requiring a two-year cool-off period for lawmakers exiting office before they can be lobbyists, increasing transparency requirements for organizations using public communications to influence public officials and creating a log of lobbying so residents can see who has lobbied their representatives, for how long and for what reasons.
Sam Inglot, spokesperson for Progress Michigan, said the group isn’t done with this ballot initiative yet and is focused on launching another measure for the 2022 election.
In the meantime, there is a new package of bipartisan lobbying bills that could potentially change some of the goals of the initiative.
House Bills 4687–4689 would prohibit former members of the House and Senate and heads of state departments from working as lobbyists for two years after leaving office. The three bills are sponsored by Reps. Laurie Pohutsky (D-Livonia), David Martin (R-Davison) and Andrea Schroeder (R-Independence Twp.).
If these bills were to become law, violations could be punishable by up to a year imprisonment or up to a $1,000 fine.
Inglot called the bill package a “good start, but let’s end the revolving door.”
“Let’s not stop at just people with senator in front of their names,” he said, referring to state lawmakers being subject to the proposed law. “There’s a lot of people in public positions of power that we believe also should be barred from lobbying after leaving those positions.”
The bill package made it through the House Rules and Competitiveness committee last week and could go up in front of the full House for a vote in coming weeks before the Legislature goes on summer break.
HB 4689, sponsored by Schroeder, does have an interesting twist compared to the other two bills in the package.
It prohibits legislators from accepting compensation for communicating with state officials to influence legislative action.
Schroeder said the bill is to “eliminate any ambiguity” because she found nothing in statute that would specifically prohibit lobbying as a lawmaker.
Mark Brewer, an attorney and former Michigan Democratic Party chair, said the legislation raises questions.
“If she knows of people who are doing this, they may be committing a crime. Or at least their constituents should know about it,” Mark Brewer said. “I cant believe a legislator could possibly think it’s ethical to moonlight as a lobbyist.”
In March, a 10-bill, bipartisan package passed through the House with unanimous support that would create the Legislative Open Records Act (LORA) to govern public access to information in the state Legislature and subject the state’s executive branch to FOIA.
Michigan is one of only two states that exempts the governor’s office and one of eight that exempts the Legislature from FOIA requests.
When Gov. Gretchen Whitmer campaigned in 2018, she said that she would open the governor’s office to FOIA requests, but she hasn’t held that promise yet.
The bills, House Bills 4383–4392, may have passed through the House, as in recent sessions, but the Senate has historically let these bills sit in committee without action. Transparency advocates are concerned that may be the case this term.
“I’ve seen this package or similar proposals not go through before,” Delie said. “And I think with COVID we’ve seen a lack of transparency, so I would like to make sure that the Legislature seriously considers this improvement and then works to improve it further.”
But others outside of the Legislature are done waiting on reforms.
During Sunshine Week in March, Progress Michigan announced it is launching another ballot initiative for the 2022 election to expand FOIA for the Legislature, governor’s office and lieutenant governor’s office.
Lonnie Scott, executive director of Progress Michigan, has said that the ballot initiative would hold the state’s elected officials to the same standards of FOIA to which every other state department is held.
That’s different than the legislative package, which isn’t identical to FOIA for the Legislature and instead establishes a new process known as LORA.
One of the big holes in the LORA bills is that it states that something would only be subject to FOIA if it’s been in the possession of a person or body for 15 days or more.
HB 4383 does state “that a public body shall not destroy or alter a public record, or a record that will become a public record once it has been in its possession for 15 days, before the record has been in its possession for 730 days.”
But the time delay does raise some concerns.
“Everything’s better in real time,” said Lisa McGraw, Michigan Press Association (MPA) public affairs manager. “If you’re trying to write a story about something that’s happening, you would want to be able to access the information as quickly as possible. But again, we’re going for that compromise.”
The LORA bills would only affect public documents after Jan. 1, 2022, if the bills are passed, so any documents before that date still would not be accessible to the public.
Additionally, communication between the legislative offices and the governor’s office with their constituents would not be accessible through LORA, unless the constituents are also lobbyists or state employees.
Another major difference between what is proposed by Progress Michigan is that under the LORA bills all appeals for denial of a record request would go through the Legislative Council instead of the judicial review process included in FOIA.
Delie says that he supports the legislation as is, but would also be supportive if the Legislature went with a judicial review process instead of the council.
“I don’t know what the administrative process is going to look like in practice. I don’t know how it’s going to actually work out,” Delie said. “If it turns out that that process isn’t as efficient, then I think there will need to be reform. But I don’t think we know that yet.”
“At the same time, I would much rather have a process than no process. And I think this is at the very least a step in the right direction,” he added.
The MPA endorsed the LORA bills, but McGraw admits the bills “aren’t perfect” because of the exemptions and the appeal process.
“My bottom line is that with legislators and the governor, taxpayers pay you to do your job, and they should know what you’re doing,” McGraw said.
There is a belief in some parts of state government that FOIA is used as a weapon, but it doesn’t have to be that way, Delie said.
“It’s a fear that FOIA requests are being used offensively, as some way to penalize public bodies,” Delie said. “And I think the correction to that is partially legal in the sense of strengthening FOIA, but it’s creating a culture in public bodies of recognizing that FOIA is designed to promote free passage of information between the public and public entities, and that these are the public’s records. The default should be to disclose as much as we possibly can and hold back as little as possible.”
Will reforms go anywhere?
There may be a lack of trust in state government by residents across the political spectrum, but there have also been steps to regain that trust this year and in recent years, a lot of which have been led by Michigan residents, not politicians.
“There are lots of conversations around transparency and ethics happening in Lansing and I think we’re seeing … a very loud chorus of people saying it doesn’t have to be this way anymore,” Inglot said.
Michiganders have gotten involved in citizen-led ballot initiatives to reform government — and voted in record numbers for two measure in 2018.
The Michigan Independent Citizens Redistricting Commission (ICRC), a panel of 13 Michigan residents — four Democrats, four Republicans and five independents — is now in charge of drawing the state’s new U.S. House and state House and Senate district lines for the 2022 elections, rather than the Legislature.
And in 2018, more than two-thirds of Michigan voters passed Proposal 3, which allows for no-reason absentee voting, same-day voter registration, straight-ticket voting and more, making voting more accessible to more residents.
However, Republicans offered up 39 voter restriction bills in March that would ban unsolicited mass mailing of absentee ballot applications, prohibit pre-paid postage on absentee ballot envelopes for absentee ballots, require a photo ID, curb the hours people could drop off their ballots in boxes and require video surveillance of such drop boxes.
More people voted in the 2020 general election than ever before in Michigan history.
But advocacy leaders say the work can’t be completely left up to citizen-led initiatives, instead work needs to happen in the lawmaking process, too.
“I hope that there’s actual movement and we don’t keep facing the same problems with transparency and accountability policies that have been brought up year after year in the Legislature, spinning our wheels in the mud and they go nowhere,” Inglot said.
Correction: The original story incorrectly stated the rule about deleted documents under LORA.