It's time for Gov. Whitmer and Democrats to finally 'Fix the damn law!'

I have a general rule about construction traffic: You can't complain for years about how lousy the roads are and then rant and rave about lane closures or detours when repair crews finally get to work.

This strikes me as such common sense that, had she asked me, I would have advised Gov. Gretchen Whitmer to load her campaign literature with images of orange barrels and miles of taillights under the words "YOU'RE WELCOME."

Sure, it might have been a bit edgy. And a lot of those construction projects, which take years to plan and approve and implement, may have originated during her predecessor's tenure. Still, I thought it was a fair point that wouldn't escape voters: "I said I'd fix the damn roads, and now I'm doing it." Turns out Her Excellency didn't need any help after her opponent decided to base her campaign on blaming drag queens for everything from pit bulls to potholes.

But six years after Whitmer also pledged to bring more transparency to Michigan government, she's made less progress than a rush hour driver on Interstate 75. There's plenty of blame to go around, starting with former Republican Senate majority leaders who refused to act on measures to expand Michigan's Freedom of Information Act that passed the House with overwhelming bipartisan support. In a twist that would be deliciously ironic if it didn't smack of the kind of gamesmanship that has allowed the most powerful politicians in Michigan to continue operating under a shroud of secrecy, Republicans are now criticizing Democrats for failing to advance a long-overdue expansion of our public records laws.

With the 2023 legislative session winding down, the best way for Democrats to inoculate themselves against charges of hypocrisy is to introduce and pass an expansion of the Freedom of Information Act before the end of the year.

The people's business is still none of your business

Inflation. War in Ukraine and, now, the Middle East. Mel Tucker. Another Netflix rate hike.

I know it seems like we're all facing bigger problems than a toothless Michigan open records law that exempts the governor and the Legislature from having to fork over the same kind of public records virtually every other governmental body in America is required to make available to you. I say "in America," because Michigan is one of only two states to exempt our governor and state lawmakers from a Freedom of Information Act that requires them to reveal how they are conducting the people's business — your business. Technically, we're the only state, because Massachusetts, which also allows its state lawmakers to keep their public records private, is really a commonwealth. Massachusetts is also the place where the most powerful political figure in the statehouse had a brother who was the most notorious gangster in the commonwealth and, ultimately, one of the most wanted fugitives in United States history. I can't help wondering how much we may have learned about Senate President Billy Bulger's efforts on behalf of his little brother James Joseph "Whitey" Bulger Jr. if Massachusetts subjected state lawmakers to a Freedom of Information Act.

Of course, I'm more concerned about what we might have learned about Michigan lawmakers if their texts, emails, correspondence, memos, calendars and travel records were subject to public disclosure.

How did Gov. Rick Snyder respond to officials who raised red flags about potential problems with the water in Flint?

What did then-Senate Majority Leader Arlan Meekof say to officials in the governor's office when he pushed to have former House Speaker Rick Johnson appointed to a medical marijuana licensing board, where Johnson would accept bribes, sex and a no-show job for his wife to help weed shops get a jump on the competition?

Who did Whitmer consult as she made life-and-death decisions about how to handle the COVID-19 crisis?

The types of records that could help tell these stories are subject to disclosure in every Michigan village, township, city, school board, public works department, drain commission, zoning board and police commission.

Even seemingly benign records can offer revealing insights.

Shortly after Detroit Mayor Kwame Kilpatrick took office in 2002, I requested copies of his appointment calendar. I had no idea Hizzoner was up to no good. I had so much confidence in his leadership that I had seriously considered an offer to become his first press secretary. But I was curious how the new mayor was spending his time and who had access to the most important person in southeastern Michigan. Kilpatrick's calendar provided some of those insights and more, though it would take several years for me to figure out "Hold for Mayor: Gone Fishing!!!" meant Hizzoner was out of town with his mistress. That may seem like a personal detail of little interest to taxpayers, until you consider Kilpatrick's affair cost Detroiters more than $8 million when he tried to cover it up by using city money to settle a whistleblower lawsuit.

This is why journalists say "democracy dies in darkness" and "sunlight is the best disinfectant."

Too much conversation, a little more action

When Whitmer ran for governor in 2018, she unveiled an ambitious and enlightened plan to increase transparency and accountability in Michigan. Her "Get it Done: Michigan Sunshine Plan" boldly proclaimed: "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. Michiganders should know when and what their governor is working on."

Whitmer was right about our right to know. But she either didn't understand "the governor's authority under the Michigan State Constitution," or decided not to use that authority. Of course, she could always just act as if the governor's office was subject to FOIA and release public records. Instead, Her Excellency added a condition to her transparency pledge: She wants the Legislature to be covered by FOIA before pulling back the curtain on the governor's office. That's seems reasonable to me, but it's not what she promised if you elected her governor.

When I asked Whitmer press secretary Stacey LaRouche to explain this change of heart, she sent a statement that said, in part: “Governor Whitmer believes that state government must be open, transparent and accountable to taxpayers. She is the first governor in state history to voluntarily disclose personal financial information, income tax returns, travel records and public calendars online."

Thanks to the Sunshine link on the governor's section of the state's website, we know Whitmer had nearly $1.3 million in an investment and retirement account before she was elected in 2018. Her latest financial disclosure form says her investment account was up to more than $2 million as of Dec. 31, 2022.

So, score one for the guv there. But Whitmer also has required top state officials to sign nondisclosure agreements when they left their state jobs. I asked LaRouche to explain how that increased transparency in state government. She did not respond.

LaRouche did say that Whitmer will work with the new Democratic majority in the state Legislature to "pass good government legislation that has stalled for decades."

I asked LaRouche if Whitmer was disappointed her fellow Democrats haven't brought that legislation forward yet. She did not respond.

Republicans, on the other hand, have had plenty to say about expanding FOIA. They've introduced legislation and mocked Democrats for appearing to abandon an issue they had championed for years.

Democrats say they've been busy eliminating the Snyder-era tax on pensions, expanding civil rights protections, repealing Right-to-Work and restrictive abortion laws and crafting a budget. But that's still gotta sting.

Gathering Moss

I imagine getting state lawmakers excited about passing legislation that subjects them to more scrutiny is about as easy as getting a homecoming crowd hyped up by showing them the Dungeon and Dragons club's new eight-sided dice.

That's one reason state Sen. Jeremy Moss, D-Southfield, has yet to reintroduce the FOIA reform legislation he has pushed since he was first elected to the statehouse in 2015. He has been saying for more than a few months that those bills will be introduced in a few months. He told me Thursday he expects Democrats to introduce something before the end of the year.

"Republicans were in charge for eight years, and we've introduced bills for eight years, and they did nothing," Moss said. "We've been in charge for 10 months."

He said reformers are refining their proposals and that regardless of when legislation is introduced and passed, it won't take effect until 2025, which is when the next two-year legislative cycle starts. Moss said that is consistent with past FOIA-expansion bills.

"I can see the light at the end of this tunnel for the first time in a long time," he said.

That may just be a gap between tunnels, however.

Legislators want the governor's office to be subjected to the same FOIA law as virtually every other governmental agency in Michigan. As part of that process, if officials deny your request for public records, you can appeal to a judge. But legislators, citing a constitutional concern, say judges shouldn't have a say when legislative officials deny a records request. They want to create a new entity — one staffed by legislative employees.

Whitmer doesn't like that proposal and wants everyone to have recourse to a judge if their records request is denied.

Common sense says the governor is right on this one. But folks who believe state lawmakers have been able to act without fear of scrutiny are concerned this difference of opinion could further delay a reform that is already decades overdue.

All I know for sure is that, to paraphrase Her Excellency, it's time to "Fix the damn law!"

M.L. Elrick is a Pulitzer Prize- and Emmy Award-winning investigative reporter and host of the ML's Soul of Detroit podcast. Contact him at mlelrick@freepress.com or follow him on Twitter at @elrick, Facebook at ML Elrick and Instagram at ml_elrick.

This article originally appeared on Detroit Free Press: It's time for Gov. Whitmer and Democrats to finally 'Fix the damn law!'