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Conduct Check

An embarrassed state legislature meets in special session to play catch-up on ethics

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Invocation: Building the Altar

To state senator Steve Cohen, reform -- the stated purpose of the current special legislative session on ethics -- seems to have a broader definition, including even something so customary and traditional as the prayer that opens sessions of the Senate.

On Tuesday morning of last week, with the first full day of the potentially momentous special session about to get under way, Cohen interrupted his longtime ally, Lt. Governor John Wilder, as the venerable Senate speaker was introducing former legislator Ralph Duncan, now the minister of Nashville's Graceland Community Church and Wilder's choice this day to invoke the favor of the Almighty on the assembled lawmakers.

"Mr. Speaker!" broke in Cohen, who went on to cite formal Senate regulations that call for "non-denominational, non-sectarian" prayers. He insisted that Duncan, "in the spirit of the First Amendment, understanding the Constitution," comply with the restriction -- which nobody present could remember being invoked before.

Clearly taken aback, octogenarian Wilder took a breath and responded calmly: "He's my friend. I can't tell him how to pray. I can't do that."

Cohen shot back: "I've been a member of the Senate for 24 years, and I would appreciate it if the rules of the Senate were followed."

Responded Wilder: "This is Ralph Duncan, a close friend of mine, and I did ask him to be the minister of the day ... and I can't tell him what to say." Addressing Cohen as "Steve," he went on to say -- reasonably gently, all things considered -- that he supposed the sticking point for Cohen, as the legislature's lone Jew, was the expected close of the prayer, "in Christ's name." Wilder repeated that he could not dictate the terms of Duncan's invocation.

In the end, Wilder improvised a brief secular blessing of his own, repeating variations of the phrases "I want this body to be in tune with all of the cosmos" and, somewhat incongruously, "I won't tell you how to vote." He then reintroduced Duncan and said: "Those who would like to bow your heads please do so, and I'm going to bow mine."

Beginning his prayer, Duncan continued for a while in Wilder's vein, defining prayer as a "reality check," as a means of "surveying the horizon for better and best options." The minister cautiously intoned: "Whether we're Democrats or Republicans, whether male or female, whether Jew or Greek, whether rich or poor, prayer levels the playing field."

Eventually, however, the minister found he could not sustain a note of such pasteurized ecumenical harmony, Cohen or no Cohen. Abruptly, he prepared a shift: "For these few moments," he said, "let's build an altar, and let's turn this Senate room into a prayer room."

And he closed with a vengeance: "Those of us who do model our lives after the humble Galilean ... we do take the liberty of offering the prayer in his name. In solidarity with all, regardless of their faith or lack of faith, in Christ Jesus' name I pray, Amen."

Let the record show that the next day's invocation was brought by a rabbi.

Test Case: Roland v. Ford

"He always insists on hugging me," Ophelia Ford said in some wonder about Terry Roland, her once and possibly future challenger, at the end of the previous day's final pre-session meeting of the special Senate committee charged with deciding whether Democrat Ford or Republican Roland had been the rightful winner of last year's special election to determine the successor to Ford's brother John as senator from Shelby County's District 29.

To some, Republicans especially, contesting the outcome of that special election had become a test case on the legislature's bona fides vis-à-vis ethics reform. John Ford had, after all, ignited attention to ethics loopholes all by himself early last year, when a child-support hearing revealed Ford's suspiciously healthy personal finances and spurred several investigations into possible conflicts of interest. When Ford, along with four other legislators, was later indicted for extortion in the FBI's Tennessee Waltz sting, the current special session had become inevitable.

So had the senator's resignation, followed in turn by the special election. Ironically, it too had become fodder for the special session on ethics -- a sort of overture or overlay to it.

As Ophelia Ford had indicated, the dogged but hearty Roland, a Millington store-owner, was being nonstop affable to Ford, to the media, and, for that matter, to everybody else in sight as he and his three-member legal team kept pressing his case, in and out of court, to supplant her as senator.

Ford had been certified by the Shelby County Electron Commission last fall as the winner by 13 votes and was later sworn in, but the issue was still hanging fire, and there seemed a realistic hope that the panel, and subsequently the full Senate, might at least void the election results, leaving the issue to be decided on this fall's regular ballot.

In that event, the 13-member Shelby County Board of Commissioners would have the right to name an interim successor, and Roland claimed to have assurances from six of the body's seven Republicans to vote for him or another Republican to fill the seat. (The seventh so far uncommitted Republican was Bruce Thompson, the current holder of a politically and demographically divided swing district in East Memphis.)

Roland's gallantry toward Ophelia Ford was mirrored on the six-member special Senate panel itself, where all members -- including Ron Ramsey and Jeff Miller, the two Republicans who would vote on Monday to void last year's election -- made a point of exonerating her from any election misdeeds, specifically including complicity in the two ballots demonstrated to have been cast by dead voters and in the proven participation in the special election of four ineligible felons.

The problem for Roland and his chief litigant, nominal Democrat Rich Fields, was that the panel's three Democrats -- Jim Kyle of Memphis, his party's Senate leader, Roy Herron of Dresden, and Joe Haynes of Goodlettsville -- were insisting that the magic number of 13 (the number of votes separating Roland from Ford) had to be reached before the election could be overturned. They were supported in that contention by state election commissioner Brook Thompson and, crucially, by the panel's chairman, Republican Michael Williams of Maynardville.

Fields dutifully made the case on Monday that many more ballots than the six or seven acknowledged by the panel majority were suspect. There had been a whole slew of voters -- 146 in all, he alleged -- who had either used improper addresses or had failed to comply with various technicalities of the voting procedure.

Ford's lawyer, David Cocke, supported by the panel's Democrats, argued that the address question was too ambiguous to be resolved, especially when so many members of the state's social and political elite -- native sons Howard Baker and Al Gore, to name two -- were casual about the ancestral boxes they voted from.

And to cover the procedural issues, Cocke, ably assisted by longtime Democratic activist David Upton, had pulled off something of a coup. "We need a Rosa Parks," he had told Upton, who found for him one Lavinia Hampton, one of several District 29 voters under challenge for failing to sign election forms the requisite number of times.

Testifying before the panel at last Monday's session, the matronly Hampton had been dignity itself as she pleaded with the senators not to disenfranchise her on a technicality. She recounted her family's commitment to the American political process, which had involved four sons in military service, one of whom lost his life in Vietnam.

Net result: a 4-2 vote to withhold any further action until the panel could acquire what Thompson called a "master death list" from the Social Security Administration and compare the names on it against those listed as having voted in the special election. That process would take an estimated two weeks, and, unless at least 13 newly discovered dead voters or additional felons were documented, Ford's position appeared to have a guaranteed edge for the special committee.

That realization prompted Ramsey (who became the Senate's majority leader after the Republicans achieved a one-vote edge in the 2004 elections) to scoff out loud that he and everybody else knew that the District 29 outcome "stinks to high heaven" and that such would eventually be proved -- to a majority in the full Senate if not to the six-member committee.

Privately, said Herron later on, Ramsey had confided: "We can't lose. If Roland ends up being seated or there's a new election, we win. If Ophelia ends up being seated, we also win."

Grunt Work

Meanwhile, the overriding issue of ethics legislation remained to be dealt with. Having called the special session into being as a de facto front end to the regular session itself, Governor Phil Bredesen undertook a statewide fly-around on behalf of the three major themes he expected to be addressed: stricter financial accounting, limitations on lobbyists' contributions to legislators, and the creation of an independent state ethics commission.

Back in Nashville, where an almost eerie dearth of the targeted class of lobbyists was one of the notable features of the week, there was disagreement about the precise shape of the legislation to come. Republicans were said to be holding out for more open-ended limits on contributions than were being proposed. There was sparring in the Senate on Monday as to whether the body should conduct the special session as a "Committee of 33" or through the medium of the Senate's standing committees. The former solution, favored by party leaders Kyle and Ramsey, prevailed against a rebellion led by Democrat Cohen and his Republican colleague from Memphis, Curtis Person.

The meta-message of that challenge was a larger discontent, articulated most vividly by Cohen, that the package of reforms prepared by a 12-member joint legislative study committee and now up for consideration gave too much power to the two-party leaderships. Under the terms of the draft package, lobbyists would be prohibited from contributing to individual legislators' campaign coffers but would remain free to donate to the party caucuses, which could then dole out funds to members as the leaders saw fit.

That fact, said the dissenters, centralized things too much -- empowering the party leaders at the expense of their cadres. And the failure of the proposal to apply the same limitations on PAC contributions as on those of individuals was another glaring oversight cited by Cohen, whose pre-existing power struggle with hometown rival Kyle was exacerbated by the debate.

There were isolated fireworks here and there, but, in fact, these rare moments came as something of a relief to members in both Senate and House, who otherwise found themselves poring over and ponderously reading aloud the 93 pages of text in the draft package. (While reading aloud last week, Republican senator David Fowler of Signal Mountain realized he was not being listened to by a buzzing chamber of distracted colleagues, so he threatened abruptly to sing to them. "No!" they chorused in unison, suddenly wide awake.)

And there was the day that the House Government Operations Committee, chaired by Memphian Mike Kernell, took up consideration of a much-ballyhooed proposal to amend the draft package by merging the functions of the state Election Registry with those of the proposed new Ethics Commission. This droned on for a while, until finally one of the governor's aides, sitting in the Legislative Plaza hearing room as an observer, turned to an acquaintance and said in an audible stage whisper, "This is boring as shit!"

Test Case #2: Benediction and Reprieve

After two days devoted to a relatively dreary line-by-line consideration of the proposed ethics measure, the Senate's so-called Committee of 33 went temporarily out of session, and, on Thursday, the last day of their workweek, the members formally reconvened temporarily as the state Senate itself.

Soon first-term Republican senator Jim Bryson of Franklin, a bedroom suburb of Nashville, had the floor: "I turned on the television this morning and I heard a debate on the dog-and-pony show in the legislature, and that was distressing to me," Bryson began. "This body has an obligation to the people of Tennessee to be credible. ... It defies common sense for us to try to pass ethics reform while we have indicted senators in our midst."

With that, as his colleagues and members of the media had long been alerted that he would, Bryson introduced a resolution expressing the sense of the Senate that the body's two remaining members indicted last year in the FBI's Tennessee Waltz extortion sting, Democrats Ward Crutchfield of Chattanooga and Kathryn Bowers of Memphis, should not be permitted to discuss any of the ethics issues under consideration in the special session.

The Democrats' caucus chairman, the normally affable Joe Haynes, responded in a voice that was slow with deliberation and tight with anger -- or, as he would put it, "sadness." Invoking the Constitution, Haynes said, "Within those laws is the very foundation of our democracy, that a person charged is innocent until proven guilty beyond a reasonable doubt and a moral certainty. ... And further, the Constitution of Tennessee provides that any senator who serves has a responsibility and a duty to take an oath to serve their constituents. ... This [resolution] troubles me because I don't think the Senate is being the Senate, Mr. Speaker. We have functioned for many years primarily in a nonpartisan manner, and I take this as being very partisan."

Haynes contended that the National Conference of State Legislatures had found "no precedent" for an American legislature to ask members who were indicted but not yet convicted of a crime to bow out of deliberations.

"They [Crutchfield and Bowers] have a right to face their accuser," Haynes said, concluding with the contemptuous charge that the resolution being offered was not based on ethics at all. "It comes down to money and power," he said.

Haynes was followed by another Democrat, Roy Herron of Dresden, a genial author and triathlete who is also a lay Methodist minister.

"Scripture reminds us that all have sinned and fallen short of the glory of God," Herron said. "That's true of all of us. Attacking those who are either unjustly accused or painfully fallen will not bring honor to my colleague or to the Senate."

Noting that the resolution would in any case have "no legal consequences, no power to compel," Herron said, "there'll be some pain and embarrassment today, I'm sure, for two brothers and sisters in Christ, inflicted by another brother in Christ, when it didn't have to happen today. They cannot defend themselves. Their lawyers won't allow them. They are defenseless and mute -- a 77-year-old man who's ill and a woman whose age I won't reveal but is also not very young and who has also been ill and hospitalized."

The proposed resolution "hurts people and causes division among us," Herron said. "If convictions are forthcoming, I'll join with him [Bryson] in any motion to expel and maybe even join in the castigation. Until then, they have a right to the presumption of innocence. Attacking them and dividing us is not the right course."

Next came Memphian Jim Kyle, the Democrats' Senate leader, who kept his remarks brief and to the point. Kyle said he had recently read about a poll somebody had taken on the 10 articles in the Bill of Rights. "You'd be surprised how few of them a majority of citizens believed in," he said. Even so, "there is a reason why no state legislature has ever done this. It's called the Bill of Rights."

Bryson would have the last word. Denying that "money and power" played any part in his resolution, he said, "Our constituents hold us to a high standard. We have to define what that standard is and show our constituents that we're serious about that standard."

The vote, when it came, was -- almost -- party-line, and almost anticlimactic. Needing 17 votes for passage, the resolution finished with 16 for, 15 opposed, one, Democratic senator Tommy Kilby of Wartburg, absent, and one, Senator Mike Williams of Maynardville, the Republican chairman of the special Senate ethics committee, not voting.

Republicans voted aye and Democrats voted nay, with two notable exceptions: Republican Jeff Miller of Cleveland, under fire for suspected ethics lapses of his own, including acceptance of a $1,000 "campaign contribution" from the FBI's "eCycle" stingers, had been deposed on Tuesday as GOP caucus chairman. His vote with the Democrats was variously interpreted as self-protection and as an affront to his fellow Republicans.

Owing to what Cohen would later insist was a malfunction in the chamber's new toteboard, the Memphis Democrat was listed at first as voting aye. He later made a point of formally changing his vote to nay, dropping the total number of ayes to 15, but the apparent mechanical error had called attention to what everybody already knew -- that the final decision on seating Ophelia Ford, as on much else that was sure to be disputed during the next few weeks, could not be taken for granted.

Though special committee chairman Williams continued to insist that a final vote on the District 29 matter should be withheld pending receipt of the requested information from Social Security, Ramsey indicated he would press for an immediate up or down vote this week.

As the second week of the special session began, that decision -- like the final shaping of a repentant legislature's overdue self-correction on ethics -- was "To Be Continued."

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