FORMER SEN. Robert Ford’s sentencing last week on criminal ethics charges raised anew the question a lot of people have had since the whole Bobby Harrell saga: What does it matter whether legislators are investigated by each other or by an independent panel as long as prosecutors are free to pursue criminal charges against them?
Senators’ refusal to allow quasi-independent investigations of legislators was of course what doomed ethics reform this year, and John Crangle, who as head of Common Cause South Carolina long has been seen as the state’s primary ethics advocate, asserted in a guest column that I ran in Sunday’s paper that it makes no difference.
I briefly felt that way myself after Attorney General Alan Wilson announced last year that he was bypassing the House Ethics Committee and launching a criminal investigation into Mr. Harrell, who lost his powerful position as House speaker after he was indicted on multiple corruption charges.
And if all you want to do is prosecute legislators once they step so far across the ethics line that the attorney general simply cannot ignore their misbehavior, then Mr. Crangle and others might have a point: It might not matter who has the job as primary investigator of legislators’ compliance with the ethics law.
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I said “might” because the attorney general didn’t get involved in the Ford case, or the criminal case against then-Lt. Gov. Ken Ard, until the Senate Ethics Committee and the State Ethics Commission did their own investigations, took administrative action against the men, and turned the investigative files over to the attorney general’s office.
But set all that aside — there was the Harrell case, after all — and consider whether that’s all you want out of an ethics law.
It’s certainly not all I want.
Prosecutors at any level have to pick and choose which cases they pursue, because we can never afford to give them enough resources to handle every case. The attorney general has his hands full prosecuting securities crimes and complex environmental crimes and major drug crimes, defending criminal appeals and lawsuits against the state, and filing lawsuits on behalf of the state (which often is not the best use of his limited resources).
So he’s not going to launch a criminal investigation every time a legislator accepts two $750 donations from the same person, in violation of the $1,000-per-donor limit, or fails to complete his campaign disclosure report correctly. For that matter — as we saw when then-Gov. Mark Sanford got caught using state aircraft as his personal taxi and using campaign funds to cover personal expenses — an attorney general might not prosecute a case where it seems pretty clear that crimes were committed but he doesn’t believe he’ll be able to prove criminal intent.
But I want something done — not necessarily a criminal prosecution, but something — every time a legislator accepts an illegal donation, because accepting an illegal donation gives a candidate an unfair advantage in a campaign. I want something done because the idea behind the limit is that accepting larger donations increases the likelihood that a legislator will vote the way that donor wants him to vote, rather than in whatever way he perceives to be in the public interest.
And yes, I realize that idea is a little precious these days, when we allow secretive special-interest groups to spend as much money as they want to elect or defeat a candidate, as long as they pretend to do it independently. But frankly, I want something done when a legislator violates the law simply because it is the law — and I don’t want to teach legislators that they are free to violate the law whenever it suits them.
I want something done every time a legislator fails to complete his campaign disclosure report correctly. I want that report filed correctly, because the information it’s supposed to contain — about who’s bankrolling his campaign, and how he’s spending that money — could influence how people vote; it’s information voters have a right to have.
I want an ethics enforcement panel that will tell the legislator he has to file that report — and reprimand and fine him if he refuses. Or if he fails to do it a second time.
I want an ethics enforcement panel that will tell the legislator he has to give back that $250 over the legal limit — and reprimand and fine him if he refuses. Maybe even if he complies, since it is a violation of the law.
With all laws, the thing I want most is to deter bad behavior — not just punish it once it occurs.
The way to deter bad behavior is by making people understand that they are likely to get caught, and punished, if they violate the law.
And we have no good reason to believe that is happening routinely to legislators. (We have no reason to believe it’s happening routinely to other elected officials and candidates either, but we have reason to believe that’s because the Legislature refuses to give the State Ethics Commission the staff it needs to do its job — not because the commission refuses to do its job.)
I believe that Mr. Harrell might never have crossed the line into lose-your-office-sized crimes if the House Ethics Committee had demanded that he provide the details of his self-reimbursements the first time he failed to do so. And the second time, if necessary. I doubt he would have crossed that line if, once he started reporting those details, the committee had told him that he couldn’t use his campaign account to reimburse himself for going on vacation.
But when you cross a line and nobody tells you that you crossed a line, it’s easy to convince yourself that you didn’t. It easy to go a little farther and a little farther and a little farther — until you find yourself committing lose-your-office-sized crimes. As he did.
In those cases where we can’t deter bad behavior, I want to catch it before it escalates — not wait until it’s so blatant and so obvious that an attorney general simply cannot look the other way. Because once we reach that point, the damage has been done. And we can punish, but we’re not going to undo that damage.
Ms. Scoppe can be reached at email@example.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.