Las Vegas Sun

February 21, 2017

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Jon Ralston:

NPRI has political motive, but is right on the law

On its face, the Nevada Policy Research Institute lawsuit against state Sen. Mo Denis and the state is ludicrous.

The notion that somehow Denis’ duties repairing computers for the Public Utilities Commission somehow conflicts with his legislative duties is far-fetched. He has no power in the executive branch with that — let me think of a word — ministerial job, so why sue him over it?

Three reasons:

1. There is an important principle at stake here, one easily disregarded by reflexive leftists who would rather change the subject (what about the private-sector conflicts?) and attack the messenger (NPRI is right-wing!).

2. NPRI is a conservative think tank that has concluded — with some merit — that the more public employees there are in the Legislature, the more likely the Gang of 63 will be to expand rather than shrink government.

3. Because they can.

NPRI, which has never revealed its funding sources but probably has comp privileges at all Sheldon Adelson properties, has been waiting to file this suit since it formed a Center for Justice and Constitutional Litigation. And this suit is perfect for the group’s duality — one side is pure political motivation, hoping to sully and diminish Democrats, and one side is real think tank, producing interesting, albeit tendentious data on provocative topics.

On this one, NPRI is not only on the right, it also is … right.

This is not some minor point here, some fleck of constitutional dust that the group is trying to whip up into a storm. This is a bedrock tenet — arguably the bedrock tenet — of our system of government: the separation of powers.

The argument that there should be some allowance made for — what is that word again? — ministerial jobs in the executive branch does not hold water for two reasons.

First, it would be impossible to proscribe exactly which jobs are copacetic. But, second, and more importantly, that would go against the plain meaning of the Nevada Constitution’s separation of powers clause and subsequent legal findings.

Article 3, Section 1, of the state Constitution reads thusly:

The powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative, — the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others ….

The underlying principle is almost as clear as the language, with the key word being “any.” As in even a computer technician.

No gray areas for — yes — ministerial functions, despite what legislative lawyers have previously argued to allow their bosses to continue to serve because, as one Legislative Counsel Bureau opinion says, they do not peform “any of the sovereign functions of the state.”

The state Supreme Court, in its wisdom (how often have you heard that?), anticipated the “ministerial” argument 44 years ago in a separation of powers case in which the justices concluded about “ministerial powers” can be globally significant: “To permit even one seemingly harmless prohibited encroachment and adopt an indifferent attitude could lead to very destructive results.”

Exactly. No exceptions. Period.

Executive branch employees and their Democratic Party apologists — very few are Republicans — want to cloud the issue by pointing to NPRI’s obvious political endgame, which is to remove public employees from the Legislature. (Local government workers, who arguably have even more egregious conflicts because as lawmakers they have near-absolute power over the governments that employ them, surely are next in NPRI’s unending quest for justice.)

Don’t misunderstand: Some of the better legislators have been and are public employees — they make up about a fifth of the Legislature. Tough. It’s time they chose one job.

I can already hear the wails of some on the left: Oh, it’s so much worse that private-sector folks who have conflicts on a panoply of issues — even working for firms that lobby — serve in Carson City. Oh, the humanity!

Yes, the legislative process is broken and has been for some time. And, yes, there are myriad conflicts exploited by lobbyists and legislators alike. And, yes, it does affect the quality of laws produced in the capital.

But the issue raised by the NPRI suit is about a seminal constitutional precept that those concerned about a concentration of corporate power and incestuous dealings should not so blithely dismiss in their partisan hysteria. It’s time this issue was resolved, once and for all.

And what then?

The lesser-of-two-evils solution is not as complicated as it seems: Full-time lawmakers paid a decent salary, more transparency on campaign contributions (posted on Internet within 72 hours) and lobbyist disclosures and prohibitions.

Wonder if NPRI would support that attempt to separate the powers.

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