Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 42

Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 42

{image_1}Between 1986 and 2006, Rhode Island ran a gauntlet of scandals that exposed corruption and aroused public rage. Protesters marched on the State House. Coalitions formed to fight for systemic changes. Under intense public pressure, lawmakers enacted historic laws and allowed voters to amend defects in the state’s constitution. 

Since colonial times, the legislature had controlled state government. Governors were barred from making many executive appointments, and judges could never forget that on a single day in 1935 the General Assembly sacked the entire Supreme Court.

Without constitutional checks and balances, citizens suffered under single party control. Republicans ruled during the nineteenth and early twentieth centuries; Democrats held sway from the 1930s into the twenty-first century. In their eras of unchecked control, both parties became corrupt.

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H Philip West's SECRETS & SCANDALS tells the inside story of events that shook Rhode Island’s culture of corruption, gave birth to the nation’s strongest ethics commission, and finally brought separation of powers in 2004. No single leader, no political party, no organization could have converted betrayals of public trust into historic reforms. But when citizen coalitions worked with dedicated public officials to address systemic failures, government changed.

Three times—in 2002, 2008, and 2013—Chicago’s Better Government Association has scored state laws that promote integrity, accountability, and government transparency. In 50-state rankings, Rhode Island ranked second twice and first in 2013—largely because of reforms reported in SECRETS & SCANDALS.

Each week, GoLocalProv will be running a chapter from SECRETS & SCANDALS: Reforming Rhode Island, 1986-2006, which chronicles major government reforms that took place during H. Philip West's years as executive director of Common Cause of Rhode Island. The book is available from the local bookstores found HERE.

Part 4 

42 

Perfect Storm? (2001–02) 

Weather forecasters warned that March 2001 would come in like a lion. A low-pressure system roiling with winter thunderstorms lumbered up the east coast, while a blizzard pushed eastward from the Great Lakes. The National Weather Service predicted that the storms would converge over New England with hurricane-force winds and heavy precipitation — sleet and wet snow along the coast, up to twenty inches of wet snow inland — a perfect storm. Hundreds of events were cancelled. Barometric pressure plummeted as the two merged. 

Over several days the predicted superstorm dumped inches of rain and slush but little snow. But despite the weather forecasters’ embarrassment, the metaphor of a perfect storm — still fresh from Sebastian Junger’s novel and blockbuster movie about the loss of Gloucester fishermen — remained potent. For the Common Cause spring financial appeal we used a satellite photo of the vast storm swirling over New England and warned of three powerful disturbances converging — a perfect storm at the State House. 

We said the first storm was John Harwood’s almost regal power. His wife hardly needed to apply for a lifetime post as magistrate that would pay $100,157 per year. Private clients readily paid for his help with state agencies, and loyalists in the House had rushed to strip the Ethics Commission of authority over lawyer-legislators.

We predicted that redistricting and downsizing would form the second storm: Harwood’s tacit support for the anti-downsizing crusade, his refusal to implement a fair redistricting process and standards, gerrymandering that protected loyal incumbents but fractured communities, and the prospect of taxpayers stuck with the bills for costly lawsuits. 

We suggested that separation of powers would become the third storm. Rhode Island’s Supreme Court had twice declared that the General Assembly could do whatever it pleased because the state government was a “quintessential system of parliamentary supremacy.” Harwood confederates were creating new boards dominated by legislative members and scorning the two-to-one vote for a constitutional convention to address separation of powers.

Our appeal declared: “Nothing like the convergence of three such powerful political storms has occurred since Rhode Island’s Bloodless Revolution of 1935 — an event that blew away eighty years of one-party rule and cleared the way for historic reforms. No one knows what will happen as these storms converge within the corridors of power.” 

The question remained: would Rhode Island get a political perfect storm or a washout? 

Nearly fifty, John Harwood was at the top of his game. After nine years as speaker, he seemed unassailable. He had consolidated his power through patronage. His network was vast, supple, and resilient. Physique and disposition enhanced his power. He handled stress well, stayed cheerful, played hard, rarely committed errors, and took occasional defeats in stride. He listened carefully, remembered well, valued performance. His team seemed unbeatable. Had we made a mistake in predicting that a perfect storm might topple him? 

 

In February 2001, Operation Clean Government (OCG) charged in an ethics complaint that the speaker represented private clients before state agencies whose budgets he controlled, charges that involved wetlands permits and liquor licenses. Under public pressure, the speaker announced that he would stop taking such clients, but his network of relationships still shielded him. Seven of nine members of the Ethics Commission recused themselves, citing conflicts of interest. Even William J. Conley Jr., the commission’s counsel, said he might recuse himself because his law partner was George Caruolo, who had long been Harwood’s political alter ego. 

It came as no surprise when the lawyer-dominated panel punted. Chairman Mel Zurier announced that they would wait for the appointment of commissioners without such conflicts of interest. Lauren Jones, who had represented Harwood in settling earlier ethics charges, agreed to extend the legal deadline until new commissioners could be appointed. But that never happened, and after several months, commissioners quietly dropped OCG’s complaint. 

Donald L. Carcieri, a Republican businessman campaigning for governor, denounced the dismissal, decrying an appointment system that left the Ethics Commission “toothless.” He demanded that voters be allowed to decide on separation of powers. 

Whatever mistakes Gov. Almond made in packing the Ethics Commission with politically connected attorneys, he committed himself to separation of powers and fought to end legislative encroachment into executive functions. Though Almond saw most of his vetoes overridden, both of his court challenges crushed, and the results of his advisory referendum stonewalled, he rarely backed off. As Rhode Island’s first governor with a four-year term, he used his two terms boldly. As he entered his last year in office, many wondered if any successor, whether Republican or Democrat, would dare to continue the fight. 

 

At the Common Cause annual meeting in November 2001, all of the likely candidates for governor pledged to make separation of powers a priority. But Sheldon Whitehouse, who had raised the issue a decade earlier, suggested that Common Cause might accomplish more with a gentler approach. This suggestion bothered many in the audience, and the separation of powers task force invited him to explain his thinking. 

A week later the attorney general arrived, out of breath, at our office. The room was full. I gave him my seat and sat in a doorway, taking notes. 

“I asked for a couple of minutes on your agenda,” Whitehouse began, “to raise some questions about strategy.” He rehearsed his long cooperation with Common Cause on separation of powers and argued against confronting the General Assembly with “a posse of gubernatorial candidates.” He warned: “Some of them are recent converts to the cause. They have no track record on this issue and may let you down if one of them were elected. Forgive a whiff of skepticism.” 

He proposed that we leave the legislature “some wiggle room” on a constitutional amendment, possibly agreeing to legislative appointments on a few boards in exchange for ending their wholesale encroachment. 

From the head of the table, Carl Bogus replied, more softly than he usually spoke: “What makes you think it’s a mistake to confront the General Assembly in an election year?” 

“John Chafee,” Whitehouse replied, referring to the former governor and U.S. senator who had died two years earlier, “had an aphorism that I always thought was sound, ‘Do not tease the crocodile until you’ve crossed the stream.’” 

“Meaning that we should not push too hard until after the election in November?” Bogus asked. 

“That’s my advice,” Whitehouse said. “The leadership, particularly on the House side, is already furious with you. We’ll need their cooperation to get a question on the ballot.” He said legislative leaders knew they had a problem and that, off-camera, a lot of legislators would acknowledge separation of powers as right. 

Bogus asked what made him think this approach would work. 

“Because in politics,” Whitehouse replied, “you can’t lose face. If they were to back down after years of strife and two wins at the Supreme Court, that would be a huge loss of face.” He noted that all our efforts to educate the public had not made separation of powers a burning issue. 

“That may be,” said Bogus, “but they’ve shown no interest whatsoever in compromise. What makes you believe we would gain by offering concessions?” 

“You wouldn’t offer concessions. We’d take a back channel approach.” 

“Explain exactly what’s wrong with our current approach,” Bogus pressed. 

“Phil has become radioactive,” Whitehouse said. “There’s more sympathy for separation of powers than you see, but the General Assembly still has its pride.” Negotiations might become possible, he predicted, if Common Cause took a conciliatory approach. 

My face burned. He had conferred with House leaders and wanted a truce. 

Members of the task force peppered him with questions until he rose to leave. Whitehouse made a final request — that we not invite Rep. Tony Pires to sponsor separation of powers legislation. Pires had chaired the House Finance Committee until he and Harwood split in 1999. Now Whitehouse expected to face Pires and former Sen. Myrth York in a three-way Democratic primary. 

The attorney general left, and task force members refilled their coffee mugs. When they settled down again Carl Bogus asked what they had heard. 

“That Phil is ‘radioactive,’” said Bob Cox from the State Council of Churches. “Frankly, I found that offensive.” 

“That Sheldon wants us to lay low until he becomes governor,” said Nancy Rhodes, now president of the Common Cause state board. 

“And what if he doesn’t become governor?” asked Donald Koehn, who represented Operation Clean Government. “We’d lose the leverage of an election year and gain nothing.” 

“Or what if he becomes governor and can’t deliver?” Burt Hoffman growled. Decades in Washington had left him a perpetual cynic. “Sheldon wants Harwood’s support in the primary. He wants us to shut up so this doesn’t catch fire during his campaign. Fire is just what we need.” 

Topher Hamblett, the lobbyist for Save the Bay, spoke last. “We can understand Sheldon’s concerns without submitting to them. House leaders are already overextended. I think we can push them into making mistakes.” 

“Let me be clear,” said Bogus. “We’ve just heard the attorney general — a leading candidate for governor and one of the most articulate advocates for our cause — ask us to lighten up. And we’re saying no. Are we sure?” 

“I’m very fond of Sheldon,” said Bob Cox. “He’s come several times to talk with us about separation of powers, and he’s taught us a lot that I didn’t know. But he’s wrong about this. Dead wrong.” 

No one favored Whitehouse’s proposed strategy. Bogus summarized the approach he had heard after the attorney general left: build our separation of powers coalition, increase grassroots organizing, continue educating the public, push for legislative oversight, and “let everyone know we’re not burying our swords.” The task force agreed unanimously. 

The meeting adjourned without anyone assigned to tell Whitehouse about our decision. 

I knew that I should phone him but kept putting it off. Night after night, his rebuke that I was “radioactive” woke me up. In my pique I did not phone Whitehouse to let him know. Nor did he call me to ask what we decided. 

 

With Almond and his staff, we began planning an event that could lock all the candidates for governor into fighting for separation of powers. We would also rally legislators to the cause. We set out to pack the State Room on January 29, 2002. 

On the morning of the event, Ed Achorn published a call to arms in his weekly Providence Journal column. “Through a remarkable convergence of forces,” Achorn wrote, citizens actually have a fighting chance in 2002 to make a profound change. If fixing Rhode Island’s inherently corrupt form of government becomes the central issue of this campaign — if citizens demand that politicians commit themselves to a balance of powers — the legislature could finally move to honor the public’s will.” 

The day of our January event felt like spring, and the temperature in Providence soared to nearly seventy degrees. Across the ceiling of the State Room stretched a perfectly painted blue sky with wispy white clouds. Hundreds of activists squeezed into the resplendent space, packing it to the walls and windows, while scores more stood in the open double-doors or pressed close in the hallway. Above the crowd, massive portraits of revolutionary war heroes occupied the walls as television crews positioned cameras and clamped microphones onto the podium. Over the carved white marble fireplace, Gilbert Stuart’s portrait of George Washington evoked Rhode Island’s place in American history. 

All the chairs for dignitaries, reporters, and spectators were taken. From a bank of microphones I welcomed the crowd and praised Almond for hosting this event, for taking separation of powers to the Supreme Court, and for putting Question 6 before voters. I thanked the scores of grassroots groups that had helped win a two-to-one victory for the issue, and I asked members of the legislature who were sponsoring separation of powers legislation to stand. The audience gave them a thunderous standing ovation. 

We were not the first to fight for separation of powers in Rhode Island. Common Cause Vice President Dan Siegel, a rare book dealer, had given me a copy of Might and Right, a book by Frances Whipple McDougall Green, published shortly after the Dorr Rebellion, and I held it up, open to its frontispiece etching of Thomas Wilson Dorr. Might and Right included a full text of the “People’s Constitution,” which contained a ban on dual office holding: “No person or persons connected with one of these departments shall exercise any of the powers belonging to either of the others, except in cases herein directed or permitted.” That clause would have ended legislative appointments to executive boards, but those who crushed Dorr kept it out of the new Constitution. Without Dorr’s ban, members of the General Assembly kept writing and executing state laws. 

Amid enthusiastic applause, Almond stepped to the podium, towering over me beneath a shock of white hair. He thanked the citizens groups that had worked to move separation of powers front and center on the Rhode Island agenda. “This is long overdue,” he said. “This is what Rhode Islanders want, and they’ve made that point crystal clear.” He summarized his frustrations through the seven years when the General Assembly kept thrusting additional legislative appointments onto quasi-public bodies and executive boards. “Can you imagine?” he asked indignantly. “What possible good government rationale could there be?” 

In alphabetical order, the candidates to replace Almond took the podium. Republican Jim Bennett, former head of the Convention Center Authority, spoke of the General Assembly’s ability to interfere with businesses as one reason that large corporations stayed out of Rhode Island. 

Don Carcieri, also a Republican, used an image that became the media’s hook for the event. In a reference to Jules Verne’s Twenty Thousand Leagues under the Sea, Carcieri compared the General Assembly to the giant squid whose tentacles almost crushed the submarine Nautilus. Laughing at the absurdity, he added, “The speaker of the House is the de facto governor!” 

Next Tony Pires cited what he had seen while he chaired the House Finance Committee: “Great opportunities for abuse in such areas as patronage, consulting contracts, construction projects, pension benefit enrichment, and excessive salary increases.” 

Myrth York explained why separation of powers was not a partisan issue. “It’s the heart of what’s wrong with Rhode Island government,” she declared. “The U.S. Supreme Court isn’t going to come in and help us. We have to do this ourselves, and we can, if all of us, Republicans and Democrats, work together.” 

The candidates spoke from prepared statements, and we distributed copies of a letter from Atty. Gen. Sheldon Whitehouse. “I want to reiterate my strong support for separation of powers,” he wrote. “I have pressed this issue continuously for more than ten years. I have argued personally before the Rhode Island Supreme Court for a proper separation of the legislative, executive, and judicial powers.” 

Enthusiasm was high as the crowd filtered out of the State Room. Joe Larisa, Almond’s executive counsel pulled me aside. “Couldn’t have been better,” he said. “The governor loved it. We need to keep their feet to the fire, and we will.” 

Larisa made sure no one was listening. “What’s with Sheldon?” he asked. “I was amazed he didn’t show.” 

“He didn’t like this approach,” I said. 

Larisa laughed. “Sounds like he didn’t want the others to have equal footing on this issue.” 

The next day Whitehouse wrote me a letter on elegant vellum with a fountain pen — mailed from his home to mine. “We have worked together too long on this for me not to express to you my disappointment at your latest tactics. I met with you and members of your board to offer my opinion as to how we should best proceed. I never even received the favor of a reply.” 

He had learned that Tony Pires would sponsor a separation of powers amendment. “If it was your considered purpose to provoke and annoy the legislature, you could not have chosen better.” In fact, I had not asked Pires; he had filed a clone of Gorham’s constitutional amendment. 

“I am no stickler for ceremony,” Whitehouse continued, “but I do ‘stickle’ a bit here personally. After all we have been through, after all the real work and real risk I have undertaken, to be subjected to the manipulative stunt of invitation into this line-up of arrivistes and into a strategy you know I think is self-defeating, or be absent on an issue that I have put more into than the rest of them together — I think it’s beneath you.” 

I crumpled his letter and hurled it into a wastebasket. Why had I not called him after the task force decided to go forward with the event? I knew the answer. Although I took it as a badge of honor that House leaders were furious with me, his reproach that I was “radioactive” had stung. In my annoyance I had delayed calling him and never followed up. I retrieved his letter, smoothed it, read it again. 

Common Cause had an apt motto: “No permanent friends, no permanent enemies.” Beneath my anger, I admired Whitehouse, a New England blueblood who typically put principle above personal advantage. No matter how political calculations had clouded his judgment, Whitehouse had been a leader on separation of powers. And just as leading Democrats had not helped Myrth York in her 1994 campaign against Almond, he understood an aggressive attack could sink his campaign for governor. 

I assumed he had reported the meeting at our office to House leaders. By not telling him we had decided to go ahead with the candidates’ event, I had left him looking inept. Whatever his reasons, Whitehouse stayed away, and Don Carcieri’s metaphor — giant squid tentacles crushing the life out of Rhode Island government — had led the news and filled front pages across the state. 

Carcieri made separation of powers his rallying cry. When all six gubernatorial candidates took the stage before business leaders at the Rhode Island Convention Center, he opened by urging the audience to lobby for a separation of powers amendment. “There is nothing more important that the business community can do today,” the former Cookson America CEO declared. “This General Assembly is much too heavily involved with the day-to-day operations of the state. We are trying to run a modern state with a $2.6-billion budget with a group of part-timers who think it’s their business to run the state.” 

Another Republican candidate, former Lt. Gov. Bernard Jackvony, made the same point with a provocative play on Mesolella’s role at the Narragansett Bay Commission: “When we flush our toilets, the legislature is involved. They run the largest sewer system in the state.” 

 

“The stall” is a classic tactic for discouraging citizen-activists. It never appears in House or Senate rules but nestles in the authority of committee chairs to rearrange agendas. On March 26, a rainy Tuesday, House Judiciary Committee Chairman Robert E. Flaherty convened his members to hear testimony on guns and separation of powers. Until recently, Flaherty had chaired the Rhode Island Lottery Commission. Because six of its nine members were legislators, “The Lot” had been an inviting target for seven years. Flaherty’s committee agenda listed bills in numerical order, but he took the gun bills first. “We have some police officers signed in to testify tonight,” he announced. “I’m going to give them the courtesy of speaking first on each bill, so they can go home to their families.” Flaherty stalled separation of powers until after 9 p.m., when newspaper reporters ducked out to write their stories. The next day’s headlines would be about weapons. 

Our witnesses still packed the room, standing along walls, holding signs: 

      We, the People, Demand a Vote

      for Separate and Co-Equal Branches. 

 

     We, the people, by 66% to 33% on Question 6, 

     asked you to let us amend the Constitution. 

 

     When will you respond to our request? 

 

In their mute solemnity, they reminded me of the “Silent Sentinels” of 1917, who picketed the White House for women to vote. Even when seats opened up, several continued to stand. 

Flaherty finally announced what he called “Rep. Gorham’s latest so-called separation of powers bill.” He then excused himself stiffly and retreated to his office. Several committee members followed him or disappeared into the hallway. The committee’s long oak table was nearly empty. I hoped our witnesses would not feel deflated. 

As prime sponsor, Gorham testified first: “Last year, I brought you legislation that included the precise text of Governor Almond’s advisory Question 6, which called for a constitutional convention to consider separation of powers. As the signs that these patient people are holding remind us, voters approved Question 6 by a two-to-one margin. And as you remember, in spite of overwhelming public support, the House recommitted my bill to this committee on the last night of the 2001 legislative session. I suppose that means you could bring it out of your files, if you chose.” 

He suggested instead that they save a step: the General Assembly should place a constitutional amendment before voters without a convention. “It’s number 7050 in your binders,” he said, “and I’d like to walk you through it. I hasten to add that this isn’t a partisan bill in any way. Rep. Pires introduced 7113, which is identical, word for word.” 

Gorham paused. “The current text of Article V already says that ‘The powers of the government shall be distributed into three departments: the legislative, executive and judicial.’ We propose to add a single sentence that will be clear to anyone who reads it: ‘These departments shall be separate and co-equal, as under the Constitution of the United States.’” 

“If I may, Rep. Gorham?” Bristol Rep. Fausto Anguilla interrupted. Short and stocky, he was cordial in the role of acting chairperson: “Does this word ‘co-equal’ appear in other state constitutions?” 

“Excellent question, Rep. Anguilla,” Gorham replied. “In fact, it does not. Many other states use the older phrase: ‘separate and distinct.’ But the word ‘co-equal’ appears in many modern decisions by the U.S. Supreme Court. We think ‘co-equal’ is more current and more intelligible, but we could live with ‘distinct.’ ” 

“Who do you mean by ‘we,’ Rep Gorham?” 

“I worked with Common Cause on this text, but we’re not rigid if this committee is willing to really work on an amendment.” 

“And you could live with ‘separate and distinct’?”

“Of course,” Gorham said brightly. “It certainly has a noble pedigree.” Gorham segued to proposed changes in Article IX. “We propose to follow the federal model, where the president appoints executive officials with the ‘advice and consent of the senate.’” He led the handful of committee members still at the table through the text. 

“Finally,” Gorham said, “we come to ‘Article VI: Of the Legislative Power.’” He glanced along the table. “I know this will be the most controversial part. We propose to delete Article VI/Section 10, often called ‘the broad powers clause.’ ” 

“You’re not serious.” Anguilla was incredulous. “This is the foundation of legislative power.” 

“We are dead serious, Rep. Anguilla. Legitimate legislative power will continue uninterrupted. What will end is the General Assembly’s power to do anything its leaders want unless it’s explicitly prohibited by the Constitution.” 

A dozen witnesses from environmental, business, reform, and religious groups followed Gorham to the witness chair. In my turn, I reminded committee members that overwhelming numbers of voters in all of their cities or towns had voted for separation of powers. “It’s not our view that legislators are bound to do what their districts ask, but neither are you free to ignore constitutional questions your voters ask you to consider.” 

All evening, a man with a bowtie had stood with his back to one of the huge windows, holding a “We the people” sign. When there seemed to be no more witnesses, he raised a hand, and Anguilla called on him. 

“My name is Harvey Perry,” he said. “This is my first time testifying here. I’ll be brief.” He had no notes and stood against the table. “I drove up from Westerly in the rain because I consider it my duty as a citizen of Rhode Island. I don’t want to be harsh with those of you who have stayed until the end, but I hope you’ll pass my warning on to those who walked out just when the committee got to separation of powers. They may not want to hear, but they will not escape this issue.” 

Perry swept a hand through a thick wave of chestnut hair. “From my work in a bank I know that numbers have a way of catching up with people who ignore them. I think everyone here needs to take seriously the numbers of people from their home communities who voted for separation of powers. ‘We the people’ have trusted you to represent us. ‘We the people’ have asked you to correct a defect in our state government. ‘We the people’ are asking you to let the voters fix a flaw that has crippled our state for hundreds of years. You didn’t cause this problem, but you can address it by placing Rep. Gorham’s constitutional amendment on the November ballot. ‘We the people’ are urging you, our representatives, to let voters establish genuine legislative oversight. ‘We the people’ are asking you to seal a door that stands open to patronage and corruption.” Perry hesitated, then finished: “Mark my word, if you ignore these numbers, ‘We the people’ will throw you out of this lovely building.” 

He stepped back from the table, and Anguilla affirmed him: “For your first testimony, Mr. Perry, that was powerful. Thank you.” 

After the hearing, I asked Anguilla if I could ride down with him in the elevator. Years earlier, a mentor in New York taught me about lobbying: “Don’t leave the building until the last legislator leaves for home. Walk him to his car. In those moments when the pressure’s off, you may get some crucial information. At the very least, you’ll build a relationship.” 

Anguilla and I rode an elevator from the second floor to the sub-basement, where we stepped into a passageway through the foundation. Brick footings that bore the weight of upper floors and the dome spread like pyramids enameled white; black iron pipes ran overhead. We walked beneath them toward the legislators’ exit. A year ago, Anguilla had stood solidly with House leaders to kill Gorham’s bill. I said I thought he had sounded more sympathetic in this hearing. 

“I’ve never been unsympathetic,” he said as we walked. “You’ve put your finger on a weakness that’s been at the core of our state government for hundreds of years. But we need to be extremely careful with a constitutional amendment. We have to avoid the trap of good intentions that produce unintended consequences.” 

We passed the guard station and stepped out into rain from rapidly moving clouds. “On the political front,” Anguilla said as we walked toward his car, “you’ve done your job. I’ve been getting a lot of calls from my district.” 

“Does that mean you’ll support Gorham’s bill in the vote next week?” 

“Whoa!” he laughed. “Let’s not get ahead of ourselves here.” 

“Just counting noses,” I said. “That’s my job.” 

“Count me leaning your way. But don’t mention my name.” He opened his car door. “There’s a lot of pressure not to let Gorham’s bill see the light of day.” 

We shook hands, and he drove off into the night. I walked through the rain to my car. None of tomorrow’s papers would tell of witnesses holding signs or of Harvey Perry’s impromptu “We the people” speech, but this had been a productive night. 

 

A week later, the House Judiciary Committee gathered for crucial votes before the deadline. I approached Rep. Gene Garvey, who represented a picturesque south coastal district that included Charlestown, South Kingstown, and Block Island. Warm and white-haired, Garvey was a retired insurance broker whose smile was etched in place. A deputy majority leader on Harwood’s leadership team, he was under pressure to keep others in line. He shrank from my approach. “So, Gene,” I asked, “are you with us on Gorham’s separation of powers amendment?” 

“I don’t think tonight,” Garvey said grimly. 

“Gene,” I persisted, “more than seventy-two percent of your constituents approved Question 6.” 

“The way it was phrased, I’m not sure they understood.”

“They understood, Gene, and we’ll inform them about tonight’s vote.”

“Do what you have to do, Phil. I’ll do what I have to do.”

Moments later, Pawtucket Times reporter Jim Baron squeezed into a seat next to me. “So what’s your count?” he whispered.

I held up a hand with my thumb and index finger almost touching. “More than last year. Too close to call.”

The Judiciary Committee members slid their chairs against the table. House leaders would weigh votes here as they decided how committee members’ priority bills would fare, the size of legislative grants for their districts, and how much support House leadership political action committees would provide for their fall campaigns. 

Flaherty gaveled for order. He held a multi-page agenda marked with codes to show what House leaders wanted done with each bill. The hearing droned on for an hour with occasional questions. Most bills passed unanimously or with dissenting votes from the tiny contingent of Republicans. I had long ago ceased being amazed that lawmakers followed their leaders despite missing testimony on bills. 

“On Rep. Gorham’s resolution 7050,” Flaherty announced, “I move non-passage. Quite frankly, I see no need to consider an amendment now. The question of a constitutional convention will be on the 2004 ballot. Let’s let a convention consider this properly.” 

That seemed an ironic point for Flaherty to make, since Gorham’s 2001 resolution sought to start the convention process until Flaherty moved to bury it. Harwood’s team had clearly calculated they could delay separation of powers to death. They expected that voters would lose interest. 

As the clerk called the roll, I tallied votes on my chart. The final count was 10–8 for “non-passage,” killing Gorham’s bill. Rep. Gene Garvey backed Flaherty’s motion for “non-passage.” Among the eight who voted to send separation of powers to the floor for a full debate were Fausto Anguilla and three other Democrats who had voted the previous year to recommit the bill. 

I followed Jim Baron to the hallway to comment. “This is impressive,” I told him. “The leadership wanted to kill this.” 

“Didn’t they just kill it?” He held his recorder for my answer. 

“With a 10–8 vote, it’s not dead. Tony Pires’s version is still alive, and there are two similar bills in the Senate. We’re closer to passage than we were before.” 

Baron’s Pawtucket Times story on the committee’s 10–8 vote scooped the Providence Journal. The statewide paper’s Ed Fitzpatrick caught up with committee members the next day. “Because it’s an election year,” Republican Nick Gorham told Fitzpatrick, “you are going to see more people from the other side of the aisle who are going to put what the people want over what the leadership wants.” Rep. Robert D. Sullivan, a Democrat, explained that he had switched to support separation of powers in 2002 because “a lot of people” from his East Providence district said they wanted to vote on it. 

I observed that separation of powers was not “a flaky esoteric new idea. It is the core principle of American democracy. It has been tested in our federal government and in other state governments over a period of two hundred years. Our message to members of the House and Senate is to remember your district.” 

 

After this close vote in the House Judiciary Committee, our challenge was to ramp up outside pressure and force a floor vote in the House. We dispatched email updates to broadcast and print reporters, organizations, and activists. Our memo included town-by-town tallies on Question 6 and a list of House Judiciary Committee votes for and against Gorham’s amendment. We hoped weekly papers would highlight how local representatives had voted. 

Columns and editorials favoring separation of powers burst forth like daffodils. Edward Achorn’s weekly alarum went to homes across the state. “Politicians have long been propping up a rotten edifice in Rhode Island,” he wrote, “a more than 300-year-old system that gives the General Assembly too much power, breeding corruption. But this week, citizens may finally have an opportunity to knock it down — if they can rise above their apathy and act.” He described the likely House vote and hammered Harwood for treating “the vast majority of the public with contempt.” He urged readers to call their representatives and demand a November vote on a separation of powers amendment. 

To force debate on separation of powers Rep. Nick Gorham invoked a different section of the obscure rule he used on the last night of the 2001 session. Rule 32 allowed the minority to bring legislation to the floor after its defeat in committee. 

The showdown came on April 10. As representatives entered the House chamber, activists stationed outside each of three entrances handed them detailed explanations of Gorham’s separation of powers amendment. 

From the west gallery, I watched TV reporters and radio talk show hosts prowling the red-carpeted chamber. Commercial stations had cameras mounted on tripods near the rostrum that would record the debate. Below me on the dais, in what sounded like a routine question, Harwood asked Robert Watson, the blustery minority leader, if he would like to place Gorham’s bill on the regular House calendar. 

“Would that allow a full debate on the merits?” Watson asked.

“It could,” Harwood replied.

Watson missed the procedural trap and agreed.

When Gorham’s bill came up on the calendar, Flaherty moved instantly to recommit it to House Judiciary.

Watson jumped to his feet to challenge the motion.

“Any rep can move to recommit any item on the calendar,” Harwood ruled from the rostrum.

“If we’re playing a clever game,” Watson roared, “congratulations. You just scammed the people of the state of Rhode Island. What you are about to do is an offense and an outrage to the people.” 

Harwood’s agreement to place the separation of powers amendment on the calendar rather than to process it under Rule 32 changed the rules of debate. A move to recommit was not debatable. In an instant the speaker ordered a vote and Flaherty’s motion to recommit passed 49–38. 

The speaker’s heavy-handed parliamentary maneuver blocked debate on separation of powers a second time, but the number of representatives supporting debate climbed from twenty-five the previous June to thirty-eight only ten months later. 

“We got sandbagged, plain and simple,” Gorham told reporters. “What this tells me is that they are afraid to debate this issue, because they know they can’t win.” 

House Majority Leader Gerry Martineau dismissed the move as an election-year ploy. “I consider it one of the defining issues for Republicans,” he said. “The debate would have been an opportunity for them to grandstand on the issue.” 

I suggested to reporters that it was risky for House leaders to put 49 representatives on the record opposing separation of powers. “If you’re afraid of a debate on the substance, you use a procedural maneuver to prevent debate. In the long run, they will not prevail. It’s a volcano that, sooner or later, will erupt.” 

News articles, opinion pieces, editorials, columns, and letters to the editor flayed Harwood and the representatives who backed his stonewalling, but throughout the spring, House leaders feigned indifference to negative press. 

Finally, in May, Rep. Paul Crowley sent an opinion piece to newspapers, arguing that fifteen other states allowed legislative appointments to boards and commissions. “Louisiana may be the champion,” Crowley wrote, “with almost 500 boards and commissions. In that state, legislators sit on the Compensation Review Commission, the Educational Assessment Testing Commission, the Judicial Compensation Commission, the Board of Trustees for Municipal Teachers, and the State Employees’ Retirement Systems.” 

“Louisiana is our toughest case,” Peter Hufstader told me, “but most of those bodies are either parish-level or study commissions.” 

We quickly sent a response that showed state by state how rarely lawmakers served on executive bodies: “In a review of the 500 boards Rep. Crowley cites for Louisiana, the supposed ‘champion’ of state boards and commissions, only thirty-one are marginally executive. Contrast that to Rhode Island’s fifty-four.” I noted that Louisiana and Rhode Island had long been famous among the nation’s most corrupt states. But I asked: even if Louisiana really were the champion of legislative infiltration, would that be the standard we sought? 

 

Throughout the spring of 2002, House leaders had been flexing their political muscles with bills we branded “power grabs” because they conferred executive powers on sitting members of the General Assembly. Paul Crowley, for example, long considered the dean of education in the House, filed legislation to give House and Senate leaders hands-on control of the Board of Regents for Elementary and Secondary Education. 

House Finance Committee Chair Gordon D. Fox proposed to put the Veterans’ Memorial Auditorium under direct General Assembly control. His new board would have nine members: five appointed by the speaker and four by the Senate majority leader. Seven of the nine would be members of the legislature. The concert hall would become a patronage mill. 

Another leadership bill would convert Vincent Mesolella’s Underground Storage Tank Fund into a quasi-public corporation — freed from fiscal control of the Clean Water Finance Agency and oversight by the general treasurer. Five members of the thirteen-member board would be legislative appointees. Mesolella had chaired the board since its creation in 1994; the conversion would vastly expand his authority over funds and contracts. Mesolella, a Harwood crony and developer, also appeared to be the likely beneficiary of a controversial $33.5 million subsidy for a new luxury hotel in Providence. The hotel proposal popped up late in the session and sped through both chambers. 

The most lucrative power grab of all involved land. Under a cover of platitudes, the bill proposed a I-195 Redevelopment Board to sell off land that would become available when a dangerous section of the interstate highway was relocated out of the Jewelry District in Providence. Rep. William J. Murphy and Sen. Domenic J. Ruggerio proposed identical bills for a nine-member board with three members appointed by the speaker, three by the Senate majority leader, and three by the governor — the same appointment scheme as the Lottery Commission. Both bills idled in committee for five months, then revved their engines for a screeching run through the House and Senate during the last days of May. 

Piling insult upon injury, a budget article created a corporation with comprehensive executive powers to borrow against Rhode Island’s share of a $2.8 billion national settlement with tobacco companies. The governor, speaker, and Senate majority leader would comprise its three-person board. Atty. Gen. Sheldon Whitehouse wrote to legislative leaders that this would be “utterly impermissible under our Constitution . . . because it is legislatively controlled.” 

The $2.64-billion state budget put forward a second blatant power grab. Unprecedented new language would require that the governor, speaker, and Senate majority leader all approve “any single item or contract expected to exceed $100,000 other than those within the Office of the Governor and Legislature.” It would strip Almond’s authority to hire personnel or spend money during his final months in office. Many state constitutions gave governors line-item vetoes to block wasteful spending, but this new proposal would empower Rhode Island’s legislative leaders to veto expenditures under budgets they already approved. It would let Harwood and Irons veto contracts or new hires anywhere in state government. 

As the session ended, House leaders threw up a procedural hurdle to thwart separation of powers. Rep. Mabel Anderson filed a bill that would outlaw any constitutional amendment or statewide referendum that contained “more than one question” within its text. Her bill would prevent separation of powers amendments, since they would amend several articles of the Constitution at once. 

I testified against it but was met with stony resistance. Democrats on the House Committee on Special Legislation approved it on May 29 and sent it to the House floor. That night, I fired off emails to every member of the House. Their in-boxes would be clogged with hundreds of messages, but I kept trying to warn them. To my astonishment, Anderson’s “single-question” bill appeared on the House Calendar the very next day. 

I started along the rows of House desks, leaving a letter at each, but the doorkeepers stopped me, confiscated the letters I had already distributed, and trashed them. I warned representatives as they entered the chamber. Most said they knew nothing about Anderson’s “single-question” bill; several who were aware of it admitted they were under pressure to vote for passage. By a vote of 56–3, representatives approved it, and its journey from the House Special Legislation Committee to Senate Judiciary took less than twenty-four hours. Amid scores of other bills in the closing hours of the session, it was getting priority treatment and no press coverage. 

Harwood’s team exuded confidence and enjoyed leverage. Many senators had labored through the session on bills that still awaited action in House committees. Each would feel the squeeze to pass Anderson’s “single-question” legislation and bills we called “power grabs.” What would the Senate do? 

 

Throughout the spring, Senate Majority Leader William V. Irons had been watching Harwood’s heavy-handed tactics from a safe distance. In April, he had told reporters Rhode Island was “not like all the rest of the states,” and he insisted that the issue was “not as simple as referendum proponents make it sound.” But as public reaction against House leaders mounted, Irons suggested that there might be “a middle ground between the absolute change that the proponents of the referendum seek and the status quo that the House wants.” He quietly designated Sen. Mike Lenihan and the Senate policy chief Ken Payne as emissaries to Common Cause. Lenihan had risked punishment to sponsor separation of powers amendments, and Payne was a seasoned political operative who would report verbatim to Irons. 

Carl Bogus, Nancy Rhodes, and I squeezed into Lenihan’s tiny office. With Payne at his side, Lenihan began cautiously: “We think we can deal with a portion of this by creating a well-staffed study commission.” He mentioned the study commission he had led in 2000 that probed the credit card scandals in quasi-public boards. “We could do something like that again,” he said. “Our report might include a separation of powers amendment that the General Assembly could consider for the 2004 ballot.” 

But Senate leaders wanted something in return. The House held a 3–2 edge in the all-important Joint Committee on Legislative Services, and senators were determined to “balance power” between the two chambers. Payne reminded us that the speaker controlled the number of Senate staff and their levels of pay. Lenihan gave an example of how petty House leaders could be: his laptop was a hand-me-down from a representative who had gotten a new one. 

“With this commission idea,” Rhodes said, “what if you identify all the problems, but the House still has all the power?” 

“I’m not sure,” Lenihan replied. “At least, we would expose the public to the relevant information.” 

We agreed to get back to them, and the three of us debriefed over coffee. “I’m reluctant,” Carl Bogus said. “We’ve always known that the balance of powers between the Senate and House is an issue, but it complicates the primary question of separating legislative and executive power.” He thought that a study commission would delay the process, break our momentum, and make it harder to revive public support. 

We decided to push for an up-or-down vote in the Senate. A Senate vote would mark a watershed. After that, a formal study could work out details. I phoned Lenihan at home, and he seemed relieved that we would not back off. We ramped up our campaign of emails and phone calls. 

As pressure mounted, cracks appeared in Irons’s base. Sen. Frank T. Caprio and his younger brother, Rep. David A. Caprio, were partners in the family law firm founded by their father, chief judge of the Providence Municipal Court. Still in their thirties, the youthful Caprio brothers were bright, ambitious, and photogenic with black hair, intense eyes, and height that made them stand out in crowds. 

Frank Caprio had aided Irons’s coup against Paul Kelly, and Irons rewarded him by appointing him chair of the Senate Finance Committee, awarding him the spacious office that had been Lenihan’s, and granting him his preferred district on Federal Hill, which I had dubbed “Caprio’s Castle.” 

In April, David Caprio had played an aggressive role in the House scuffle over separation of powers. I had watched him scurry around the House chamber, holding a soft drink to prevent anyone from reading his lips, as he rallied support for Gorham’s resolution. I wondered whether he was fighting for the principle or against Harwood — or both. 

In May, Frank Caprio groused to reporters that Irons had cut him out of budget negotiations with House leaders. He accused Irons and Harwood of conspiring to keep separation of powers off the November ballot. 

 

Word of the brouhaha over separation of powers drew curious journalists from beyond Rhode Island’s borders. Don Aucoin, a writer from the Boston Globe, asked to shadow me around the State House. Wherever I introduced him, jaws dropped, and I stepped away while he talked with supporters or opponents of the amendment. 

Aucoin’s feature ran in the Globe the very day a Senate committee was scheduled to take testimony on separation of powers. Aucoin summarized what he called “the cozy folkways of ‘Rogue Island.’” He sketched the seven-year struggle for separation of powers and profiled me as fighting historic corruption, which he called “a task to make Sisyphus grateful for the comparatively light duty of rolling a rock uphill for all eternity.” A few lawmakers congratulated me on the Globe profile, and others glanced my way with what struck me as grudging respect. No one could buy that kind of publicity. 

On the day of the Globe piece, two separation of powers resolutions were posted for an extraordinary noontime hearing of the Senate Committee on Special Legislation. Ironically, Sen. Maryellen Goodwin was the first female chair both of this committee and of the Rhode Island Lottery Commission. 

Senate Minority Leader Dennis Algiere had introduced a Senate clone of Nick Gorham’s House bill. It would make the branches of state government “separate and co-equal, as under the Constitution of the United States,” grant the governor power to make all executive appointments, and delete the “broad powers” clause that allowed the General Assembly to do whatever it liked unless the action was explicitly prohibited in the text of the Constitution. 

Mike Lenihan had filed a resolution with similar features, but he phoned confidentially about a substitute that Irons wanted. “You’ll like one section,” he said discreetly. “You’ll also notice a deletion you won’t like. You understand that this isn’t for me to decide.” 

Our witnesses filled the sign-in sheets with signatures. Nearly every seat in the mahogany-paneled Room 313 was occupied when Goodwin gaveled her committee to order. “I have a SubA for Senator Lenihan’s bill,” she announced. “Our clerk is distributing copies to the committee, and I hope we’ll have enough for all members of the public.” 

The substitute version made my heart sink. The clause “separate and coequal, as under the Constitution of the United States” had vanished. Gone also was the crucial deletion of the “broad powers clause.” If that clause stayed, the General Assembly would continue exercising the same unchecked powers as it always had. 

The substitute contained one redeeming feature: a robust ban on dual office holding. Like the spurned People’s Constitution of 1841, it would bar representatives and senators from serving on any board or quasi-public entity that exercised “executive power under the laws of this state.” A reciprocal clause would bar members of such boards from running for the General Assembly as long as they served on such boards. 

I felt relieved that the substitute version of Lenihan’s bill did not contain the administrative parity between the House and Senate, which Irons had demanded in a separation of powers amendment. 

Senate rules allowed the majority and minority leaders to participate in committee hearings, but they rarely did. On this day, Irons strode in and took a seat. With gruff indignation, he attacked what he called “false and misleading statements” by separation of powers supporters. “The governor’s question in 2000 misled voters when it asked whether they wanted ‘separate and co-equal branches of government similar to those established by the U.S. Constitution and by the Constitutions of all forty-nine other states.’” Irons declared correctly that many state constitutions were silent on the subject. 

He waved a campaign postcard that Republican gubernatorial candidate Jim Bennett had mailed to thousands of voters and read it out in a mocking tone: “‘Right now, the Assembly dominates nearly every board and commission in the state, and it has to stop.’ If not a lie,” Irons thundered, “that’s an absolute misstatement of the truth. The fact is that legislators constitute a majority on precisely two boards: the Lottery Commission and the Unclassified Pay Plan Board.” 

But for all his bluster, Irons did not try to amend Lenihan’s proposed constitutional amendment to balance power between the Senate and House. 

After nearly four hours of testimony, Goodwin asked the committee’s pleasure on both Algiere’s original legislation and the substitute version of Lenihan’s bill. By votes of 14–2 and 13–3, senators sent both to the Senate floor. Never before had any committee of the General Assembly backed separation of powers. 

“I look at this as establishing a beachhead,” Lenihan told reporters after the vote. “I hope passage of this bill will lead to a victory on the issue.” 

With less restraint, I told the press: “The people have said it, the candidates for governor have said it, and now a Senate committee is saying Rhode Island needs to have an authentic American-style separation of powers. After a while, if the House leadership persists unreasonably, they will break themselves on this rock.” 

On May 30, the Rhode Island Senate made history when both Lenihan’s and Algiere’s separation of powers amendments appeared on the calendar. The oratory did not soar, but awareness of a sea change permeated the chamber. 

John Roney — who had prosecuted our complaint against former Gov. DiPrete eleven years earlier — railed against passage. He declared that a change of such historic import should come from a constitutional convention. “This is just what we should not be doing in the closing hours,” he declared. “Constitutional amendments, like diamonds, are forever.” 

Sen. Domenic Ruggerio also opposed passage, telling his colleagues that only six people had contacted him about separation of powers. “And five of them,” he said, “had no idea what separation of powers was. They said they heard it on the talk show.” 

Quietly, Lenihan defended the principle: “Separation of powers, as manifested in these bills, is not a cure-all for all our governmental ills. Simply vesting powers in a governor is by itself no assurance against abuse. We don’t have to go back too far in our memories to note that.” He reminded his colleagues that the legislature had historically dominated state government. “Rhode Island,” he said, “would benefit from a healthy tension between the three branches of government.” 

Paul Kelly, who had blocked separation of powers for years, reiterated an argument he used often — legislators on boards and commissions brought back vital information about crucial issues. Nonetheless, Kelly announced, it was “the inherent right of the people to determine how their state government is going to be run.” He said he would vote to put separation of powers on the ballot. 

Uncharacteristically low-key, Bill Irons warned that Algiere’s version would sever the legislature’s “broad powers” from the Constitution. “I’m not sure what powers are being taken away,” he said. 

Despite Irons’s urging, senators approved both the Algiere and Lenihan resolutions by identical votes of 40–6. The two Senate separation of powers resolutions went to the House Judiciary Committee, where they would surely die. 

Nick Gorham tried another procedural rule: if he could get 40 signatures on a discharge petition, that would require House leaders to bring his resolution to the floor. Against the massed power of Harwood’s leadership team he got 38: 23 Democrats and 15 Republicans. 

The 2002 legislative session ended with new laws that violated separation of powers. Instead of adhering to the principle it had endorsed, the Senate succumbed to pressure from House leaders and consented to four new power grabs. 

Gov. Almond vetoed these bills and the state budget, but the General Assembly returned on June 12 and overwhelmed his vetoes. Huge Democratic majorities in both chambers made the overrides seem like child’s play. 

 

On a quiet Friday after lawmakers went home, two Democrats who had helped Gorham round up signatures on his discharge petition came back to the State House with some of their neediest constituents. Reps. Betsy Dennigan and Tom Palangio convened a press conference between massive marble columns outside the House chamber. Flanked by constituents with physical disabilities, they announced that House leaders had withheld funding for vulnerable groups and the nonprofits that served them. The punishment, Dennigan announced, came because of her votes for separation of powers amendments in 2001 and 2002 and because she had supported regular audits of the Assembly’s finances. “I have stood strong on my beliefs that there should be separation of powers,” she declared. “Unfortunately, House leaders do not share these views, and the members of the Summit Association — who are innocent bystanders — are being punished for my beliefs. It’s tremendously unfair.” 

Palangio, a Providence Democrat, said he had sought funds for a baseball team of children with handicaps. “Using grants as a political club is the wrong thing to do,” he said and restated his support for separation of powers: “It’s the right thing to do. We need to take power away from the speaker’s office — this speaker in particular because he uses power as a billy club.” 

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