IT’S NOT AGAINST the law for legislators to try to pass laws that help their business clients, no matter how much those clients pay them.
It ought to be, but it’s not.
In most cases, it’s not even against the law for legislators to keep those payments secret.
It ought to be, and beginning Jan. 1 it will be, maybe. But it’s not illegal now, and like working to pass laws that will benefit those secret clients, it has not been illegal during any of the 15 years former House Republican Leader Jim Merrill is accused in indictments of doing both.
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That doesn’t mean Mr. Merrill didn’t break the law: One of the 30 indictments handed down on Wednesday hints at the sort of evidence that would vault the wrong but legal over into illegality; he could be found guilty on two common-law charges even without convictions on the ethics charges. And it doesn’t mean there was anything ethical about the way Mr. Merrill has profited from being a legislator, racking up an impressive list of political consulting clients that stood to benefit, and sometimes did, from official actions he took as a member of the House.
What it means is that unlike the corruption case First Circuit Solicitor David Pascoe brought two years ago against then-House Speaker Bobby Harrell, this is not a slam dunk, because in South Carolina, unethical and illegal are not always synonymous. Regardless of the outcome, Mr. Merrill’s case ought to remind us, again, that our anti-corruption laws still need strengthening. Significantly.
Mr. Merrill has said for years that he gets hired to do public relations and political consulting that is completely unrelated to any actions he takes as a legislator. Lawmakers have always said that to defend profiting from their offices, and they’ve written the laws in a way that makes it a strong defense.
It’s only illegal to do legislative favors for someone who gave a legislator money if there was a clear understanding that the action was taken in return for the money. That’s the same quid pro quo linkage that’s required to turn a legal campaign donation into an illegal bribe.
So it’s perfectly legal for a business to hire a legislator who has no qualifications for a job, and for that legislator to work for legislation to help that business. That’s essentially what Gov. Nikki Haley did when she was a House member, and she was never charged with a crime because such arrangements only become illegal if it’s clear that what the legislator is being paid for is her legislative work.
Likewise, it’s legal in most cases for businesses to keep lawyer-legislators on retainer, and for those legislators to take official actions to help those businesses, as long as there’s no quid pro quo. That’s what regulated utilities routinely did with powerful legislators for years and years.
There was an effort after Operation Lost Trust to outlaw keeping legislators on retainer, but it met with very limited success. The Legislature prohibited retainers from lobbyists and the entities that hire them, called lobbyist principals, but no one else. It also required public officials to report any income they receive from lobbyists and lobbyist principals, based on the idea that people wouldn’t make questionable payments if we could see them.
That’s one of the laws Mr. Merrill is accused of violating, on 10 occasions. But the indictments all say Mr. Merrill failed to report money he received from a particular lobbyist principal “or its affiliates.” And we know from news articles going back several years that in at least some cases, it was affiliates that paid Mr. Merrill.
Clearly, legislators should have to report money from affiliates of lobbyist principals — the political action committee of the S.C. Manufacturers Alliance, as one example. But unless Mr. Pascoe can convince a court to reinterpret the very clear state law to mean something it doesn’t say — something the Legislature has repeatedly refused to change it to say — it’s hard to see a crime here.
One indictment says that 11 days after participating in a Dec. 29, 2008, conference call with the S.C. Association of Realtors “in which he solicited funding for assistance regarding the ‘point of sale’ property tax reform” legislation, Mr. Merrill introduced that legislation; it says he was paid $211,925 in return for that and other “lobbying” work.
If Mr. Pascoe has the evidence to back that claim (and one presumes he must), and if Mr. Merrill can’t convince a jury that his comments were misinterpreted, that’s a pretty clear quid pro quo. But the other eight indictments for accepting payments in return for legislative favors lack such detail: They simply say he received this amount of money and took this action, without even hinting at the necessary linkage.
None of this may matter in terms of Mr. Merrill’s fate, since he’s also charged with two counts of misconduct of office — a breathtakingly broad charge that can include actions that are unethical but not covered in the ethics law.
But the purpose of ethics laws isn’t just to convict wrongdoers. It’s to spell out appropriate behavior, to draw clear lines, in hopes of preventing public officials from slipping over those lines and into illegality. And we’re still far short of having the laws that can do that.
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.