Michigan officials dodge transparency reforms enacted elsewhere, reject dozens of bills
Mar. 16—LANSING — The Michigan Legislature has rejected more than 130 bills aimed at boosting transparency and ethics in government since a national nonprofit organization rated the state last in the subjects six years ago.
The statistic shows Michigan officeholders' ongoing resistance to laws that would provide the public more information about their decisions, including disclosing their communications and revealing potential conflicts of interest. Similar measures have already been enacted in the wide majority of other states.
But proponents of the reforms hope the tides are changing in Michigan.
During a celebration of open government known as Sunshine Week, the liberal group Progress Michigan is expected this week to unveil a ballot proposal to expose the Legislature and governor's office to open records requests. The GOP-controlled state House and a state Senate committee will consider similar proposals in the coming days.
Michigan is one of only two states that fully exempt lawmakers and the governor's executive office from Freedom of Information Act requests, meaning they don't have to release internal emails and other documents, like most state agencies. During the last three legislative sessions, the Republican-controlled Michigan House has approved plans to change the situation, but the bills have stalled in the Senate amid concerns from the chamber's GOP leadership.
"How in the hell do these other 48 states work?" asked state Sen. Jeremy Moss, D-Southfield, a champion of the open government legislation. "Obviously, they've figured out how to make transparency work."
Michigan is also one of two states that don't require lawmakers to file any type of personal financial disclosure to shield against potential conflicts of interest. And it's among a minority of states that place no restrictions on departing legislators becoming registered lobbyists.
Sen. Jim Runestad, R-White Lake, who supports the changes to boost accountability, said he's grown frustrated that proposals in the public interest haven't advanced. The exemptions benefit a few at the expense of many, he said.
Runestad said the state needs transparency laws in place so people "believe that the legislators up in Lansing and the governor, all of these people that hold immense power over their lives, are doing the right thing."
Why reforms have stalled
The people in power in Michigan's government have decided against overhauling current rules. As a candidate, Gov. Gretchen Whitmer, a Democrat, said she would unilaterally subject her office to open records requests if the Legislature declined to change the law.
Halfway into her first term, the Legislature hasdeclined to change the law, but the governor hasn't taken action either.
But Whitmer's spokesman, Bobby Leddy, said she is the first governor in state history to voluntarily disclose personal financial information, income tax returns, travel records and public calendars online at www.michigan.gov/sunshine.
"Gov. Whitmer believes that state government must be open, transparent and accountable to taxpayers," Leddy said.
Whitmer has faced criticisms focused on transparency this month amid news that her administration reached separation agreements with departing officials, requiring them to maintain confidentiality about aspects of their government employment.
The Democratic governor argued that such deals are common in the private and public sectors, although experts disagree. On Friday, she issued an executive directive that put some limitations on the agreements going forward, but her opponents said they didn't go far enough.
From 2015 through 2018, then-Senate Majority Leader Arlan Meekhof, R-West Olive, blocked many of the plans to subject the Legislature and governor to records requests.
The Senate already puts the text of proposed bills online, holds public hearings on legislation and makes video of sessions available for the public online, and considers requests to view business leases and staff salary information, Meekhof said in 2017. He warned that lobbyists could use the reform to read his emails to advantage their clients.
The question now is whether Senate Majority Leader Mike Shirkey, R-Clarklake, who took over in 2019, will follow in Meekhof's footsteps or be more open to open government reforms. At a press conference in January, Shirkey told reporters he was "all in" for transparency but also "pretty dug in" against financial disclosure for lawmakers.
"I think that's fodder ... to go after people," Shirkey said of making information about lawmakers' outside sources of income available to the public.
Failing grade for transparency
The Washington, D.C.-based nonprofit news outlet Center for Public Integrity ranked Michigan last among the 50 states in a November 2015 "comprehensive assessment of state government accountability and transparency."
The assessment gave states grades for public access to information, electoral oversight and lobbying disclosure, among 10 other categories.
Moss, who studied journalism at Michigan State University, had taken office in the House 10 months before the ranking debuted. That same year, the House expelled Rep. Cindy Gamrat over misconduct involving the Plainwell Republican's extramarital affair with Rep. Todd Courser, a Lapeer area Republican who resigned before an expulsion vote was held.
The Southfield Democrat contended the situation with Gamrat and Courser, including their efforts to cover up their affair, showed the need for more transparency in state government.
Moss began working with Republican lawmaker Ed McBroom of Vulcan, who was in the House in 2015 and now serves with Moss in the Senate. They also partnered with the American Civil Liberties Union, the Mackinac Center for Public Policy and the Michigan Press Association.
Their initial proposal passed the House in September 2016. It didn't receive a committee hearing in the Senate. Last session, with Moss and McBroom in the Senate, a similar package received a Senate hearing but no vote.
COVID-19 and the number of bills and issues the pandemic spurred got in the way, McBroom said, contending that the package's failure last year wasn't symbolic of where senators stood.
Shirkey, like many senators, wants to be reassured that the change won't get in the way of the Legislature's ability to work for constituents, McBroom said. The current proposals have exemptions for communications between lawmakers and their constituents. Plus, Michigan's Freedom of Information Act exempts records that would represent an "unwarranted invasion" of privacy.
"Mike is a true advocate for transparency in government," McBroom said of the Senate majority leader.
Shirkey sponsored the last significant changes to Michigan's Freedom of Information Act, when they were approved in 2014, noted Lisa McGraw, public affairs manager for the Michigan Press Association.
That policy placed new limitations on the amounts that government bodies can charge for records and increased the amounts that courts can award if agencies break the transparency law.
"The history here helps with my optimism," McGraw said.
Shirkey's office didn't respond to a request for comment about the Freedom of Information Act package.
Many stalled proposals
In addition to the open records bills, the Michigan Legislature has declined dozens of other proposals related to transparency and ethics since the Center for Public Integrity ranking.
Bills to require lawmakers to file personal financial disclosures have repeatedly failed, including stalling in the Michigan House last term. Other proposals to subject more political giving to public reporting haven't gained traction.
Multiple plans aimed at instituting cooling-off periods before departing lawmakers become lobbyists haven't received hearings. Meanwhile, the consumer advocacy group Public Citizen lists Michigan as one of the seven "worst" states for its policies on the so-called "revolving door" of lawmakers who leave office and immediately become lobbyists.
Among 155 bills related to transparency and ethics introduced since the start of 2016, eight have become law. Three of the eight weakened current policies by allowing lawmakers to work more closely with groups that can spend unlimited amounts of money on campaigns, requiring more information from individuals submitting requests for records and exempting documents related to critical energy infrastructure from disclosure.
The other five either made minor changes, such as providing more authority to the Legislature's auditor general for investigations and allowing state agencies to supply requested documents through new technologies.
Whitmer hasn't expanded FOIA
Whitmer, Attorney General Dana Nessel and Secretary of State Jocelyn Benson have promoted the need for more transparency in state government, but meaningful actions to change Michigan's last-place ranking have eluded them.
As a candidate for governor in 2018, Whitmer issued a "Michigan Sunshine Plan" to make state government "more open, transparent and accountable." The vast majority of the proposals have not been achieved two years into her first term as governor. Many of them would require sign-off from the Republican-led Legislature, but not all of them.
"If the Legislature won't act, I will use the governor's authority under the Michigan State Constitution to extend FOIA to the lieutenant governor and governor's offices," Whitmer's plan says. "Michiganders should know when and what their governor is working on."
The governor hasn't used her authority to expand the Freedom of Information Act, meaning her executive office's communications remain legally exempt from requests.
Whitmer has used her power to require state departments to create transparency liaisons, encourage the live streaming of state meetings and prohibit the use of personal email to do government business.
Benson, the Democrat who oversees campaign finance and lobbying regulations in Michigan, campaigned on increasing transparency in Michigan government.
On Monday, she released a legislative agenda that would expand the Freedom of Information Act, require personal financial disclosures from elected officials and impose a two-year period between leaving elected office and working as a lobbyist.
"State lawmakers can demonstrate real leadership by passing strong, enforceable legislation that would create true government transparency and accountability," Benson said. "I look forward to working with them to that end, while my administration and our department continue to operate in full transparency."
Many of the reforms proposed by Benson would require the Legislature's approval.
Whitmer supports many elements of Benson's transparency agenda, Leddy said.
"The governor encourages the Legislature to give these measures serious consideration and send her bills that will improve transparency, shine a light on dark money and stop corruption," he said.
