Enforcement gap reveals difference between state laws and practices

Introduction

The State Integrity Investigation measured corruption risk in all 50 states across 14 categories. The 330 corruption risk indicators for each state break down into two types: “In law” indicators, which simply judge whether a law exists, and “In practice” indicators, which assess whether or not the laws are properly enforced.

The measurement between these two sets of indicators, called the “enforcement gap,” is where cracks and loopholes offer pathways for corruption in state government.

A state’s poor overall grade does not necessarily mean that it has a large enforcement gap. In fact, there are a few states whose final letter grades are less than stellar, falling in the C- to D- range, that have enforcement gap numbers which indicate that the state government actually goes beyond the laws in place.

In some cases, the states with negative enforcement gap scores might not even have a law to enforce, but practice transparent and ethical behavior anyway.

With overall letter grades as poor as they are, it is difficult to envision that states would have a negative score, but six states were found to have negative enforcement gaps: Vermont, Nebraska, South Dakota, Montana, Virginia and Idaho. This means that those states are actually providing more enforcement and transparency than their laws require.

In the category of legislative accountability, Idaho ensures the transparency of the legislative process with speed and efficiency. According to state reporter Betsy Russell, Idaho maintains transparency by posting all legislative documents, processes, bills and agendas online the same day. All government proceedings conducted by the state legislature are also streamed live.

“I think we have one of the most accessible legislative processes in the country,” said Jeff Youtz, Idaho legislative services director.

Transparency ensures that not only are there internal accountability measures in place for the legislature, but also that the citizens of Idaho are able to hold state officials accountable by having access to all documents and procedures.

Nebraska, another state with a negative enforcement gap score (-4) and an overall score of 80 percent, goes above and beyond in the category of the state budget process. This might be considered an achievement since any budget process can be wrought with numbers and amendments that citizens might find confusing. But according to reporter Kevin O’Hanlon, Nebraska has practices that maintain an open system of budgeting. This level of accountability comes, in part, thanks to the state fiscal budget office, which has sufficient capacity to provide quality analysis in line with its mandate. O’Hanlon reports that the office is fully staffed to perform its duties, and analysts routinely field calls from citizens with questions about the budget.

Meanwhile, Missouri, a state with a enforcement gap score that falls more in the middle (13) and an overall grade of a 72 percent score, still provides examples of going above and beyond what is necessary. In the internal auditing category, Mike Sherry reports that with an increase in staff, the office increased efficiency.

“The Auditor has an annual budget of about $8.3 million with a staff of nearly 170 employees. According to the FY2012 executive budget, the Auditor’s office received a significant boost in funding between FY2010 and FY2011, with general revenue fund increasing by about $800,000 and federal funds increasing by about $400,000.”

This boost in funding let the auditing office add 50 full-time employees to the staff. In 2010, the office released 168 audits, up from 151 the year before. Audits issued had remained at about 100 per year until 2009.

On the other end of the spectrum, there are states where the enforcement gap is alarmingly wide. Kentucky, Texas, Ohio and North Carolina each have totals of between 24 and 26 for the enforcement gap. This means there is a large disparity between the state laws and what the state actually implements. Two standout examples among states with wide enforcement gaps are Maryland and New York.

Not only does Maryland have a low overall letter grade (61% D-), but the state has a 29 percent enforcement gap, the largest among all 50 states. In other words, Maryland was found to do the poorest job of enforcing laws that they should be dutifully upholding.

The process of obtaining access to government information varies from state to state, and there are different degrees of difficulty. Maryland received an F in the Public Access to Information category, and was also they were given a 0 percent score by reporter Christian Bourge when it comes to the agency that monitors the application of access to information laws and regulations.

Bourge reports that the Attorney General’s office staffers installed at individual agencies to oversee public information requests have on occasion given faulty legal advice, which the agencies cite when denying requests.

The legislative accountability category is another area where Maryland’s inconsistet enforcement is seen. In law, there are regulations in place to prevent nepotism, cronyism and patronage in hiring legislative staff, but Bourge reports that all three are a way of life in Maryland politics. The hiring of politically loyal staff to do both campaign and government-related work is common, particularly at upper-levels of the legislative hierarchy.

New York scored 65 percent overall, with an enforcement gap score of 23 — slightly better than Maryland, but just barely.

One example of the enforcement gap is how New York handles political financing. The state earned a D- (60%) in this category. The low score is easily understood when one considers the existing loophole which allows corporations to influence candidate campaigns. New York allows unlimited corporate donations to party’s housekeeping accounts. State reporter David King found the party funds then “launder” the cash to their candidates through other organizations, or simply use cash to bolster the party’s presence in the candidate’s district.

Another area that contributes to New York’s enforcement gap is their low score in the ethic enforcement agency category. Of the nine ‘in practice’ indicators that make up this category, five received a 0 percent score. Among the problems King documented were understaffing and the belief that some of those on staff don’t actually have the public’s best interest at heart.

Perhaps due to these deficiencies, the New York’s Commission of Public Integrity has disbanded and been replaced by the Joint Commission on Public Ethics. If that agency learns from its predecessor’s mistakes, New York could be on its way to a lower enforcement gap.

Citizens and elected officials in other states should review their own enforcement gaps to find the separation between law and practice. True state government integrity is only possible when strong laws are paired with strong enforcement.