IF THE SENATE ever gives in and allows independent investigators to review legislators’ ethics, the members of the House and Senate Ethics committees still will decide whether and how to punish colleagues who break the law.
So it was encouraging that the House Ethics Committee fined former House Speaker Bobby Harrell for lying to the panel, reprimanded him and ordered him to forfeit $113,000 as punishment for illegally using that much money from his campaign account to pay his criminal defense attorneys.
No, we’ll probably never see that money — Mr. Harrell’s attorney said he doesn’t have it and does have lots of other debts. And yes, it took the committee longer than I would have liked. And yes, no matter how much committee members might still feel friendship and even kinship toward Mr. Harrell, it’s relatively easy to get tough on a former speaker and former House member, who no longer has any way to punish or reward committee members. Indeed, both the House and Senate Ethics committees are much better at reprimanding people who are not representatives and senators than those who are.
So we can’t say the committee passed a backbone test.
But the fact is that the committee did not have to act. It chose to act. It chose to act because its own opinions had made it clear that candidates and elected officials could not use campaign funds to fight allegations of “personal misconduct,” and it was determined to stick by those opinions. So at the very least, the committee failed to fail a test, and that’s encouraging and even praiseworthy.
Also encouraging is the process the committee has adopted to try to avoid some of the problems that are inherent in having the House and Senate panels act as investigator, judge and jury over fellow legislators.
There’s not much they can do to avoid partiality. But another problem became obvious in the case the Senate Ethics Committee brought against then-Sen. Robert Ford: Mr. Ford initially asked the committee’s attorney for help in sorting out his campaign account. It was in assisting Mr. Ford that the attorney realized that the senator had violated the law, and took his concerns to the committee. When the committee brought a complaint against Mr. Ford, that attorney was transformed from his adviser into his prosecutor.
The House learned from that, Ethics Chairman Kenny Bingham told me, and as a result the committee brings in Columbia attorney John Nichols to advise it when it files complaints against legislators who have sought advice from staff attorney Jane Shuler.
Mr. Harrell’s case was more complicated and contentious than most, so the committee asked a second outside attorney, former federal prosecutor Deborah Barbier, to present the case against the former speaker. That allowed Mr. Nichols to advise the committee members, many of whom were non-attorneys sitting as judges.
“What we’ve done internally is as close as we can (get) to exactly what people want with outside investigations,” Mr. Bingham said.
And that’s good. As good as the House can do under the current law.
But it’s not good enough.
It’s not good enough because, as long as the law gives the House and Senate the power to act as investigator, judge and jury, the House is free to abandon this process at any time. It’s not good enough because the Senate doesn’t use this process. It’s not good enough because even if the Senate decided to follow the House’s lead, the investigative side of the process still isn’t independent. It’s still the House and Senate committees that decide whether to even investigate their colleagues. It’s still the House and Senate committees that decide whether to bring a complaint against their colleagues — and they can make that decision without us even realizing there has been an investigation, much less what it turned up.
The bill the House passed last year and that about half the members of the Senate have supported — and that the Senate hopes to take up again this month — would let an independent body investigate legislators’ compliance with the ethics law. If that body determines that there’s a problem, it would send its report to the House or Senate Ethics committee to hold a hearing. The independent investigator also would make that report public, which would make it a lot less likely that the House and Senate panels might wink at crimes — and give the public a lot less reason to worry that they might.
If we created this process, and gave those independent investigators the tools they need to do the job, and created serious penalties for violating the law, then dishonest legislators would be a lot more likely to worry about getting caught if they skirt the law. And honest legislators who accidentally cross a line would be a lot more likely to get discovered before they graduate to Harrell-sized crimes.
All of that ought to mean not that more legislators get nailed for violating the law, but that fewer legislators violate the law. And isn’t that what all of us — including our recalcitrant senators — want?
Ms. Scoppe writes editorials and columns for The State. Reach her at email@example.com or (803) 771-8571 or follow her on Twitter @CindiScoppe.