IT IS EASY, in a state increased in wisdom by Bobby Harrell’s practice of pocketing donations from special interests by billing his campaign for vacation travel and even flights he never took, to imagine this scenario:
A legislator who is a political consultant hires himself to manage his re-election campaign. He is powerful enough to command maximum contributions from all manner of special-interest groups, so he has plenty of money to spend. The political consultant overcharges the legislator, thus converting campaign contributions to personal use, in violation of state law.
It certainly would be easy to get away with, because state law requires so little detail about expenditures, and charges for “consulting” can be particularly squishy. So it’s reasonable to think that our law should take that potential for abuse into account, either making it illegal for politicians to employ themselves or their family in their campaigns, or at least requiring much more detailed reporting.
But does our law actually do that?
First Circuit Solicitor David Pascoe, who successfully prosecuted Mr. Harrell — the former House speaker — and is investigating other legislators, believes that it does. It’s one of two activities that Mr. Pascoe thinks is illegal but about which he sought a second opinion from the attorney general’s office. In the resulting opinion issued last month, S.C. Solicitor General Bob Cook makes a compelling case that state law does not prohibit either activity.
In the case of hiring yourself to do campaign work, Mr. Cook’s best argument involves the rules our state Supreme Court uses to determine what a law means. The first rule says that if the meaning is in doubt, the court must try to determine the legislative intent. So, when the Legislature wrote this law, did it intend to make it illegal for legislators to hire their own businesses for their campaigns?
Mr. Cook argues that if the Legislature intended to prohibit such arrangements, it would have specifically done so.
Beyond logic, there’s this: The ethics law has been on the books since 1991, and I’m not aware of any current or former legislator ever suggesting that his colleagues were violating the law by employing their own businesses. This strongly suggests no legislators intended to outlaw that — and certainly not “the Legislature” as a whole. And as someone who covered virtually every second of the yearlong debate over the ethics law, I can say with supreme confidence that it was not the Legislature’s intention. The intention of the Senate was to put as few limits as it could on how legislators raised and spent campaign money, and more than a few House members shared that goal.
But that shouldn’t be the end of this story. The end of this story should be that the Legislature closes this invitation to easily concealable corruption.
I’m not sure it makes sense to ban the practice. Most legislators who hire their own businesses probably get a cut rate. And as Mr. Cook noted in his opinion, a prohibition would mean that someone who owns a lawn-service company would have to hire a competitor to mow the yard at his campaign headquarters.
What would make sense is a higher level of reporting when candidates use their own or their relatives’ businesses. I don’t know precisely what that would entail, but I’m sure that if we put a half-dozen non-legislator political consultants in a room for an hour, we could figure out what needs to be reported.
Mr. Pascoe’s other question is whether it’s legal for the head of the House Republican Caucus to “influence” the caucus to hire his company for political consulting work. The inquiry bolsters our news department’s suggestion that he’s investigating Rep. Jim Merrill, a political consultant who served as Republican leader. (Rep. Rick Quinn served those dual roles as well, but that was more than a decade ago.)
Once again, Mr. Pascoe is right to see the potential for abuse, given the amount of money the caucus raises from entities that want favors from the Legislature. But once again, it’s hard to argue with Mr. Cook’s conclusion that the law that prohibits using public office for personal gain doesn’t reach to the party caucuses because state law doesn’t define them as governmental bodies.
And once again, the way to fix that problem is to fix the ethics law. In this case, that would involve making it reflect the reality that caucuses — and particularly the House Republican Caucus — act as powerful institutions of government.
It’s hard to feel good about the fact that the Legislature failed yet again last year to repair an ethics law whose flaws become more apparent by the day, but here is the one grasping glimmer:
Since it did not reform the law in the 2015 session, ethics remains at the top of any reasonable to-do list for the 2016 session. And to the long list of needed reforms, we can add these two more.
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 @CindiScoppe.